Alanbert Pty Ltd v Bulevi Pty Ltd - [2002] NSWSC 288

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 8 April 2002

JUDGMENT DATE: 8 April 2002

PARTIES :

Alanbert Pty Limited (P1)
Bernoth Realty Pty Ltd (P2)
Bertram Bernoth (P3)
Bulevi Pty Ltd (D1)
Davhand Pty Ltd (D2)

JUDGMENT OF: Hamilton J

COUNSEL : A Fairbairn (P1-3)
W Lawrence, a director, by leave (D1 & 2)

SOLICITORS: John Saroff & Company (P1-3)
W Lawrence, a director, by leave (D1 & 2)

CATCHWORDS: CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Other matters - Incorporation of words used in other document.

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785

DECISION: Disputes relating to amounts of payments, commissions and incentives determined.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 8 APRIL 2002

4528/97 ALANBERT PTY LTD v BULEVI PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: Before me today for decision are eight contested items relating to what have been known in this case as the commissions and incentives payable by the defendants to the plaintiffs in respect of the sale of lots in the subject subdivision. The issues in contest I defined in a judgment delivered on 30 August 2001: Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785 ("my judgment"). I summarised them in a consolidated schedule to my judgment.

2 Item [1] relates to the sale of lot 2 in the subdivision to Arnold by contract exchanged on 1 December 1996. The question here is whether the $8,200 in the "Paid" column of the schedule was ever received by the plaintiffs, or whether it was not. The only evidence concerning that is evidence which has been brought forward by Mr Lawrence, a director of the defendants, who appears by leave for those companies. He has tendered, as part of Exhibit 15, a letter dated 21 September 2001 to him from Mr Arvo Pikkat, and also a statutory declaration of Mr Pikkat of 22 November 2001. Mr Pikkat deposes in his statutory declaration that he is a director of Bernoth Realty Pty Ltd and also that he is the executor of the late Cecil Alan Bernoth, who has unfortunately died during the course of the proceedings. Mr Pikkat stated in his letter and then repeated in his statutory declaration that Bernoth Realty Pty Ltd received the sum of $5,240 in relation to lot 2 which was the sum of $8,200 less $2,960. The $2,960 was retained by Mr Pikkat who, the parties agree, was an estate agent who acted in conjunction with the Bernoth interests in relation to the sale of this particular lot. As I have said, this is really the only evidence one way or the other concerning it. Mr Fairbairn, of counsel for the plaintiffs, has objected in final address to the form of this documentary evidence and to the fact that Mr Pikkat was not available for cross…

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 Alanbert Pty Ltd v Bulevi Pty Ltd

Details

AGLC: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288
Case: [2002] NSWSC 288
Decision Date: 8 April 2002

CaseChat Overview and Summary

The case of Alanbert Pty Ltd v Bulevi Pty Ltd involved a dispute between two companies regarding the interpretation of a contractual document. The court was tasked with determining whether certain words used in the contract were to be interpreted in accordance with their use in another document. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the terms of the contract in question incorporated the definitions provided in another document. Specifically, the court needed to decide whether the contract's use of certain terms aligned with the definitions provided in a separate document. This interpretation was crucial as it would affect the obligations and rights of the parties under the contract.

The court examined the language of the contract and the definitions provided in the other document. It found that the contract did indeed incorporate the definitions from the other document. This conclusion was based on the clear language used in the contract, which explicitly referenced the other document. The court held that the parties must have intended for the contract to be interpreted in light of the definitions provided elsewhere, as the use of specific terms in the contract aligned with those definitions.

The court's decision meant that the obligations and rights of the parties under the contract were to be interpreted in accordance with the definitions provided in the other document. The outcome of the case was significant for the parties involved, as it clarified their respective rights and duties under the contract. The court's interpretation provided certainty and resolved the dispute between the companies.

Orders