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Adaz v Castleway [No 2]

Adaz v Castleway [No 2]

Case [2020] VSCA 293 20 November 2020

Appeal

Discovery & Disclosure

Breach of Contract

Costs

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0014
S APCI 2019 0024

ADAZ NOMINEES PTY LTD (ACN 006 228 119) as trustee for the RADO NO 2 TRUST and others according to the attached schedule	Applicants/Cross-respondents
v
CASTLEWAY PTY LTD (ACN 131 870 481) as trustee for the CASTLEWAY TRUST and another according to the attached schedule [No 2]	Respondents/Cross-applicants

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JUDGES:	WHELAN and McLEISH JJA and RIORDAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2020
DATE OF JUDGMENT:	20 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 293
JUDGMENTS APPEALED FROM:	[2017] VSC 578; [2017] VSC 755; [2018] VSC 624; [2019] VSC 14 (Robson J)

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APPEAL – Application to adduce further evidence – Further evidence in possession of applicant – Further evidence discovered before hearing of appeal but not raised – Further evidence not significant – Application refused.

APPEAL – Application to make further submissions with respect to alleged error in Court’s reasons – No error in reasons – Trial judge entitled to accept relevantly unchallenged evidence.

CONTRACT – Breach of terms implied by law – No pleading alleging damage – Damages claim arguably premature – Declaration of breach made and matter remitted to trial division for assessment of damage.

CONTRACT – Whether amount of service fee ordered by trial judge should be reduced by allowance for personal expenses – No proposed ground of appeal which raised issue.

INTEREST – Whether interest payable at penalty rate under s 58 of the Supreme Court Act 1986.

INTEREST – Amount overpaid as a result of decision of trial judge overturned on appeal – What rate of interest payable on overpaid amount.

COSTS – Trial judge ordered each party to pay their own costs of trial – No error in exercise of discretion established.

COSTS – Each party partially successful on appeal – Each party to bear their own costs of appeal.

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APPEARANCES:	Counsel	Solicitors
For the Applicants/Cross-respondents	Mr R Garratt QC with Ms F Cameron	Maddocks
For the Respondents/Cross-applicants	Mr G Golvan QC with Mr B Mason	Kyriacou Lawyers

WHELAN JA
McLEISH JA
RIORDAN AJA:

On 7 August 2020, the Court published its reasons in Adaz Nominees Pty Ltd v Castleway Pty Ltd,[1] and indicated that it would make the following orders:
[1][2020] VSCA 201 (‘Court of Appeal Reasons’).

Proposed grounds of appeal

1. Construction —error in construction of Schedule 2 of the PDSA — ‘taxable profit’…’as per income tax returns’. Leave to appeal granted and appeal allowed. [72]-[77], [92]

2. Construction — error in treating the PDSA as ambiguous or contradictory,. Leave to appeal granted and appeal allowed. [75]-[77], [92]

3. Construction — error in construing the PDSA as a profit sharing agreement. Leave to appeal refused. [93]

4. Implied terms — error in implying term (as a matter of law or fact) re ‘normal business activities’. Further submissions to be heard.
[79], [94]

[136]-[147]

5. Construction — error in not giving effect to the agreement re the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adaz v Castleway [No 2]

Details

AGLC: Adaz v Castleway [No 2] [2020] VSCA 293
Case: [2020] VSCA 293
Decision Date: 20 November 2020

CaseChat Overview and Summary

The case of Adaz v Castleway [No 2] involved an appeal by the plaintiff, Adaz, against a decision of the trial judge, with the defendant, Castleway, cross-appealing. The initial dispute between the parties centred around the interpretation and enforcement of contractual terms, specifically regarding service fees and damages. The appeal was heard in the Supreme Court of Victoria. The primary issues the court had to address included whether the trial judge erred in their assessment of the contractual obligations, the admissibility of additional evidence presented by the appellant, and the calculation of interest on overpaid amounts.

The court examined the appellant's application to adduce further evidence, which was discovered after the original trial but before the hearing of the appeal. The court found that the additional evidence was not significant enough to warrant a change in the outcome of the case and thus denied the application. Furthermore, the court dismissed the appellant's application for further submissions regarding alleged errors in the trial judge's reasons, as no such errors were identified. The court upheld the trial judge's decision to accept unchallenged evidence, finding that it was within the trial judge's discretion.

In relation to the contractual breach, the court held that while a breach had been established, the claim for damages was premature as no specific damages were pleaded. The court remitted the matter to the trial division for the assessment of damages. The court also noted that no grounds of appeal challenged the trial judge's determination of the service fee, thus upholding the original amount. Regarding interest, the court ruled that the penalty rate under the Supreme Court Act 1986 did not apply and determined the rate of interest on the overpaid amount based on the relevant statutory provisions.

Finally, concerning costs, the court upheld the trial judge's decision that each party bear their own costs of the trial. In the appeal, the court found that each party was partially successful and thus should bear their own costs of the appeal. This decision reflected the outcome of the appeals and cross-appeals, ensuring that each party was responsible for their respective legal expenses.

Orders