Allspec Construction and Project Management Pty Ltd v Azizi - [2024] NSWSC 905

Supreme Court

New South Wales

Medium Neutral Citation: Allspec Construction and Project Management Pty Ltd v Azizi [2024] NSWSC 905
Hearing dates: 18 July 2024
Date of orders: 18 July 2024
Decision date: 18 July 2024
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
See [37]

Catchwords:
REAL PROPERTY — caveat — equitable charge on defendant’s property as security for guarantee obligations recognised by earlier judgement of this Court — lapsing notice issued — plaintiff seeking to enforce “charge” — interpretation of extraordinarily badly drafted Deed containing guarantee and indemnity — Roberts v Investwell Pty Ltd [2012] NSWCA 134 — plaintiff, under Deed, did have an interest in defendant’s property capable of supporting caveat — equitable charge recognised — final orders made in favour of plaintiff

Legislation Cited:
Nil

Cases Cited:
Allspec Constructions and Project Management Pty Ltd v Jana Pty Ltd [2024] NSWSC 592
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549
Orsini v Habambo [2024] NSWSC 289
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Roberts v Investwell Pty Ltd [2012] NSWCA 134

Texts Cited:
Nil

Category: Principal judgment
Parties: Summons filed 8 July 2024
Allspec Constructions and Project Management Pty Limited (Plaintiff)
Anthony Charbel Azizi (also known as Anthony Azizi) (Defendant)
Representation:
Counsel:
J Cohen (Plaintiff)
A Smorchevsky (Defendant)
Solicitors:
JK Solicitors (Plaintiff)
Harris & Companies Solicitors (Defendant)

File Number(s): 2024/250901
Publication restriction: Nil

JUDGMENT- ex tempore

Revised from transcript; issued on 25 July 2024

These proceedings arise out of a dispute between the parties to a commercial agreement concerning subcontracting arrangements for building work. The plaintiff has obtained judgment against the defendant (as a guarantor) and seeks to have an equitable charge recognised on the defendant's half share of another property as security for his obligations under the judgment.
The agreement between the parties is recorded in a document styled "Deed" which is dated 19 January 2021. The Deed has been the subject of earlier proceedings in the Court which were begun in 2022. Hmelnitsky J delivered his principal judgment, in which he dealt with all of the substantive claims made in the proceedings, on 17 May this year: Allspec Constructions and Project Management Pty Ltd v Jana Pty Ltd [2024] NSWSC 592 (“J1”).
The background to the Deed appears at J1 [6]-[14]. The defendant, Mr Azizi, is, or was at the relevant time, a building contractor and developer. His contracting operations were conducted through two companies referred to by his Honour as “Trinity” and “Trinco”.
The plaintiff company, Allspec Constructions and Project Management Pty Ltd ("Allspec"), is controlled by Mr Joseph Elia. Mr Elia is a building subcontractor. He and Allspec were retained to undertake subcontracting work for Trinity and Trinco beginning in 2020.
Among the projects which were the subject of the subcontracting arrangement, was a development project at Stoney Creek Road, Bexley. The property in question was owned by a company named Jana Pty Ltd ("Jana"). That company was owned, or, at least,…

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.

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Details

Case: [2024] NSWSC 905
Decision Date: 18 July 2024

CaseChat Overview and Summary

The case of Allspec Construction and Project Management Pty Ltd v Azizi involved a dispute concerning a guarantee and indemnity agreement. Allspec, the plaintiff, sought to enforce a charge on Azizi's property as security for guarantee obligations, which were recognised in an earlier judgment of the court. Azizi, the defendant, had issued a lapsing notice, which the plaintiff contested. The primary focus of the case was to determine whether Allspec had an interest in Azizi's property capable of supporting a caveat, given the terms of the Deed and the legal principles surrounding equitable charges.

The court had to interpret an extraordinarily poorly drafted Deed of Guarantee and Indemnity. It needed to ascertain whether the terms of the Deed conferred upon Allspec an interest in Azizi's property that could support the enforcement of a charge or caveat. The case also required the court to consider the principles laid down in Roberts v Investwell Pty Ltd, which dealt with the interpretation of similar documents and the recognition of equitable charges. The court had to determine whether the Deed, despite its deficiencies, provided sufficient grounds for recognising an equitable charge on Azizi's property.

The court held that despite the poor drafting of the Deed, Allspec did indeed have an interest in Azizi's property that could support a caveat. The court recognised an equitable charge, allowing Allspec to enforce the guarantee and indemnity obligations as originally intended. The court found that the terms of the Deed, though not clearly expressed, were sufficient to create an interest in Azizi's property that would support the enforcement of a charge or caveat. The court granted final orders in favour of Allspec, ensuring that the plaintiff could proceed with the enforcement of the charge on Azizi's property.

Orders