AIM Partnership v Rathchime - [2010] NSWSC 860

CITATION: AIM Partnership v Rathchime [2010] NSWSC 860

HEARING DATE(S): 30 July 2010

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 30 July 2010

DECISION: Application to join defendant succeeds. Order for costs of transfer application refused.

CATCHWORDS: PROCEDURE – application to join director of defendant in proceedings – whether case against director must fail – whether real question as to whether director gave personal guarantee – whether real question as to whether guarantee was given without consideration – whether real question as to whether director’s signature was affixed only in capacity as director or in personal capacity as well – application successful. - COSTS – application for costs incurred in application for transfer of proceedings – where proceedings commenced in Consumer, Trader and Tenancy Tribunal – where alleged that claim was not within jurisdiction of Tribunal as it was not a ‘building claim’ – meaning of ‘building claim’ – where alleged that cross-claim based on rescission for innocent misrepresentation could not have been determined by Tribunal – merits of cross-claim unknown – application for costs dismissed.

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Collings Homes v Head [2002] NSWSC 1219
Grygiel v Baine [2005] NSWCA 218
Provincial Homes v Doyle [2004] NSWSC 624
Woolfe v Alexander Sussman [2001] NSWSC 702

PARTIES: AIM Partnership Pty Limited (Plaintiff)
Ratchime Pty Limited (Defendant)

FILE NUMBER(S): SC 2010/64167

COUNSEL: S A Wells (Plaintiff)
J P Knackstredt (Defendant)

SOLICITORS: Christopher C Freeman & Co (Plaintiff)
McLachlan Thorpe Partners (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

30 July 2010 (ex tempore – revised 30 July 2010)

2010/64167 AIM PARTNERSHIP PTY LIMITED v RATHCHIME PTY LIMITED

JUDGMENT

1 HIS HONOUR: The defendant (Rathchime) is the proprietor of land at 80 and 88 Arabella Street, Longueville. The plaintiff (AIM) performs building work or supplies related services. AIM says that on about 16 August 2007, it contracted with Rathchime for the carrying out of certain work described in a letter of that date. It sues to recover the cost of performing that work.

2 AIM, by notice of motion filed on 4 June 2010, seeks to join as a defendant in these proceedings a director of Rathchime, Mr Michael Wren. (The notice of motion also sought the joinder of Ms Deirdre Wren, but that application is not pursued.) Mr Wren opposes the joinder, on the basis that the case propounded against him must fail.

3 The proceedings were commenced in the Consumer, Trader and Tenancy Tribunal (the Tribunal). By order made on 24 February 2010, the Tribunal, on the application of Rathchime, but ultimately by consent, transferred the proceedings to this Court. It ordered that "the costs incurred in the Consumer, Trader and Tenancy Tribunal be costs in the cause".

4 Rathchime, also by notice of motion filed on 4…

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 AIM Partnership v Rathchime

Details

AGLC: AIM Partnership v Rathchime [2010] NSWSC 860
Case: [2010] NSWSC 860
Decision Date: 30 July 2010

CaseChat Overview and Summary

AIM Partnership filed a lawsuit against Rathchime, seeking to join a director of the defendant in the proceedings. The court was asked to determine whether the case against the director must necessarily fail due to certain legal questions. These questions included whether the director provided a personal guarantee, if the guarantee was given without consideration, and whether the director's signature was affixed both in their capacity as a director and in a personal capacity. The court found that there were real questions to be tried concerning these issues, and the application to join the director was successful.

In a separate matter, AIM Partnership sought costs incurred during an application for the transfer of proceedings from the Consumer, Trader and Tenancy Tribunal. The proceedings were initially commenced in the Tribunal, but it was alleged that the claim did not fall within the Tribunal's jurisdiction as it was not a 'building claim'. The meaning of 'building claim' was contested, and it was further argued that a cross-claim based on rescission for innocent misrepresentation could not have been determined by the Tribunal. As the merits of the cross-claim were unknown, the application for costs was dismissed.

The court's decision effectively allowed the plaintiff to join the director of the defendant in the proceedings, while dismissing the application for costs related to the transfer of proceedings from the Tribunal. The outcome of these proceedings could significantly impact the scope and direction of the litigation moving forward.

Orders