Amanda Duncan-Strelec v Thomas Richard Tate - [2010] NSWSC 872

NEW SOUTH WALES SUPREME COURT

CITATION:
Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 872

JURISDICTION:

FILE NUMBER(S):
06/260312

HEARING DATE(S):
28.06.10, 29.06.10, 30.06.10, 01.07.10

JUDGMENT DATE:
6 August 2010

PARTIES:
Amanda Duncan-Strelec – first plaintiff
David Strelec - second plaintiff
Dunlec Pty Ltd - third plaintiff
Thomas Richard Tate – first defendant
Elizabeth Ruth Tate - second defendant
Wamego Pty Ltd - third defendant

JUDGMENT OF:
Nicholas J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
In person – first plaintiff
In person – second plaintiff
David Strelec - third plaintiff
R E Dubler SC/A P Lo Surdo - first, second defendants
Wamego Pty Ltd - no appearance

SOLICITORS:
In person – first plaintiff
In person – second plaintiff
David Strelec – third plaintiff
Jackson Lalic Lawyers - first, second defendants
Wamego Pty Ltd - no appearance

CATCHWORDS:
CONTRACTS – joint venture agreement to develop land – whether agreement abandoned – whether agreement subsequently revived or whether a new joint venture agreement established – whether any subsequent arrangement mutually abandoned – no question of principle – turns on facts RESTITUTION – whether claim for remuneration quantum meruit for services provided in preparation and lodgment of development application established – no question of principle – turns on facts

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:

The further amended statement of claim be dismissed.
The plaintiffs pay the defendants’ costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

6 August 2010

06/260312Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors

JUDGMENT

His Honour: These proceedings concern the plaintiffs’ claim against the first and second defendants for damages and other relief arising from the failure of a joint venture arrangement for the development of real estate located at Lavington.
Henceforth, for convenience, I refer to the first and second plaintiffs as Amanda and David respectively. They are directors of the third plaintiff (Dunlec) which is the trustee of the Strelec Family Trust. In these proceedings Amanda and David represented themselves. Dunlec authorised David to represent it under UCPR Pt 7, r 7.2.
Similarly, for convenience, I refer to the first and second defendants as Tom and Ruth respectively. At relevant times they were the shareholders of the third defendant (Wamego), and Tom was its sole director.
Wamego did not appear at the hearing. At the outset the plaintiffs stated they no longer maintained their claim against it.
The plaintiffs contend that on about 10 November 2005 Amanda, David and Tom made an oral agreement for a joint venture to acquire and develop a block of land at Lavington for residential sub-division (the land). The land was situated along the western boundary of a parcel of land owned by Dunlec for the purpose of residential sub-division. Under the agreement Wamego was to purchase the land and become the vehicle for its development. Tom was to fund the deposit, and…

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: [2010] NSWSC 872
Decision Date: 6 August 2010

CaseChat Overview and Summary

Amanda Duncan-Strelec and Thomas Richard Tate were involved in a legal dispute regarding a joint venture agreement to develop a property. The central issue was whether the agreement had been abandoned, subsequently revived, or if a new joint venture agreement was established. Additionally, the court had to determine if any subsequent arrangement had been mutually abandoned. The court found that these questions turned on the specific facts of the case and did not present a matter of principle.

The legal issues before the court included the interpretation of the joint venture agreement, the circumstances under which the agreement could be considered abandoned or revived, and the existence of any new joint venture agreement. The court also considered whether any subsequent arrangement had been mutually abandoned by the parties. These issues required a detailed examination of the evidence and the parties' conduct.

In delivering the judgment, the court examined the evidence and the conduct of the parties. It concluded that the determination of whether the agreement had been abandoned, revived, or if a new agreement was established, depended on the specific facts of the case. The court found no overarching principle that would dictate the outcome in this matter. Similarly, the claim for remuneration quantum meruit for services provided in the preparation and lodgment of the development application also hinged on the facts of the case. The court held that no question of principle was involved, and the outcome depended on the specific circumstances.

The court did not make final orders in this case as the issues were still to be determined based on the facts. It was noted that the resolution of the disputes would require a more detailed examination of the evidence and the parties' conduct.

Orders