Anjoul v Anjoul (No 4) - [2023] NSWSC 142

Supreme Court

New South Wales

Medium Neutral Citation: Anjoul v Anjoul (No 4) [2023] NSWSC 142
Hearing dates: 13 December 2022
Date of orders: 27 February 2023
Decision date: 27 February 2023
Jurisdiction: Equity
Before: Robb J
Decision:
(1) ORDER declaring the deed between the plaintiff and the defendant dated 3 October 2013 (Deed) void in whole.
(2) ORDER that the Deed be set aside.
(3) ORDER that, subject to the set off provided for in order 6 below, the fair and reasonable amount of compensation payable to the plaintiff for the renovation and improvements to [the Winston Hills property] is $400,000.
(4) ORDER that the plaintiff pay the defendant's costs of the proceedings in the fixed gross sum of $215,000.
(5) ORDER that the total amount of costs payable by the plaintiff to the defendant in the sum of $215,000 be set off against the amount of compensation payable to the plaintiff in the sum of $400,000 so that the total amount payable by the defendant to the plaintiff is $185,000.
(6) ORDER that the amount payable by the defendant to the plaintiff in the sum of $185,000 in order 5 will, subject to further order, be stayed so that it is only payable out of the proceeds of sale of the property called the Winston Hills property in the judgments in these proceedings.
(7) ORDER that the Amended Statement of Claim otherwise be dismissed.
(8) ORDER that the Cross Claim otherwise be dismissed.
(9) GRANT the parties liberty to apply on 3 days' notice.

Catchwords:
EQUITY — general principles and maxims — they who seek equity must do equity — defendant successful in defending enforcement of deed on grounds of unconscionable conduct and Contracts Review Act 1980 (NSW), s 7 — Court finds that defendant ought to pay plaintiff compensation as condition to making order declaring deed void — plaintiff entitled to $400,000 in compensation — order that the total amount of costs payable by the plaintiff to the defendant be set off against compensation payable by plaintiff to defendant
COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — where Calderbank offer made on an “inclusive of costs” basis — where it was not unreasonable for the defendant to decline plaintiff’s Calderbank offer
COSTS — party/party — bases of quantification — ordinary basis — where costs determined on a gross sum basis

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Contracts Review Act 1980 (NSW), s 7
Home Building Act 1989 (NSW), ss 10(1)(b), 94(1)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Anjoul v Anjoul [2021] NSWSC 592
Anjoul v Anjoul (No 2) [2021] NSWSC 1511
Anjoul v Anjoul (No 3) [2022] NSWSC 1456
Burwood Council v Visy Paper Pty Ltd atf Southern Paper Converters Trust (No 2) [2021] NSWSC 1035
Commonwealth v Gretton [2008] NSWCA 117
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
DSE…

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: [2023] NSWSC 142
Decision Date: 27 February 2023

CaseChat Overview and Summary

In the case of Anjoul v Anjoul (No 4), the dispute centred on the enforceability of a deed executed between the parties, with the plaintiff seeking to enforce the deed and the defendant resisting enforcement on the grounds of unconscionable conduct and under the Contracts Review Act 1980 (NSW). The court had to determine whether the deed was enforceable, and if not, what remedy should be granted. The defendant argued that the deed was unconscionable and thus unenforceable, while the plaintiff contended that the deed was valid and enforceable.

The court found that the deed was indeed unconscionable, primarily due to the significant imbalance in the bargaining power between the parties and the circumstances under which the deed was executed. The court concluded that the defendant had not only successfully defended against the enforcement of the deed but was also entitled to compensation as a condition for the order declaring the deed void. The compensation amount was set at $400,000, representing the benefit the defendant received from the enforcement of the deed. Additionally, the court ordered that the costs payable by the plaintiff to the defendant be set off against the compensation payable by the plaintiff to the defendant.

In determining the costs, the court considered the defendant's Calderbank offer, which was inclusive of costs. The court found it was not unreasonable for the defendant to decline the plaintiff’s offer, given the circumstances. The court quantified the costs on a gross sum basis, taking into account the overall amount of costs incurred by both parties during the proceedings. The final orders included the declaration that the deed was void, the payment of $400,000 by the plaintiff to the defendant as compensation, and the set-off of the total costs payable by the plaintiff to the defendant against the compensation.

Orders