Arida v Arida - [2013] NSWSC 1051

Supreme Court

New South Wales

Medium Neutral Citation: Arida v Arida & Ors [2013] NSWSC 1051
Hearing dates: 26 July 2013
Decision date: 30 July 2013
Jurisdiction: Equity Division
Before: White J
Decision:
Parties to bring in short minutes of order in accordance with the reasons.

Catchwords: CONTRACTS - general contractual principles - construction and interpretation of contracts - agreement required valuation of property as at a particular date be obtained - valuer made valuation as at a later date, then subsequently made valuation as at requested date - whether valuer's task was complete upon making first valuation - whether term can be implied into agreement that valuer entitled to make new valuation
Cases Cited: Legal and General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314
AGL Victoria Pty Limited v SPI Networks (Gas) Pty Limited [2006] VSCA 173
Jones v Sherwood Computer Services plc [1992] 2 All ER 170
Veba Oil Supply & Trading GmbH v Petrotrade Inc [2001] EWCA Civ 1832; [2002] 1 All ER 703
Mordue v Palmer (1870) LR 6 Ch App 22
Larking v Great Western (Nepean) Gravel Limited (1940) 64 CLR 221
Category: Principal judgment
Parties: Tony Arida (Plaintiff)
Sid Arida (1st Defendant)
Joseph Arida (2nd Defendant)
George Arida (3rd Defendant)
Wayne Wotton (4th Defendant)
Representation: Counsel:
M Jones SC with V McWilliam (Plaintiff)
K P Smark SC with M J Stevens (1st to 3rd Defendants)
Solicitors:
Greenaway & Tohme Solicitors (Plaintiff)
Somerset Ryckmans (Defendants)

File Number(s): 2013/143977

Judgment

HIS HONOUR: The plaintiff and the first, second and third defendants are brothers. For over 20 years up to 2005 they carried on various businesses together in partnership. They also acquired 23 commercial and residential properties of which they were co-owners.

From about 2005 they have been in dispute. In 2010, the plaintiff commenced proceedings for the dissolution and winding-up of the partnership and the taking of accounts. In 2011, he brought proceedings for the appointment of trustees for sale to the properties.

On 1 October 2011, on the application of the plaintiff, the Court appointed trustees for sale of a property in Church Street, Parramatta. On 31 May 2012, the plaintiff exchanged contracts with the trustees to purchase that property. That sale is still to be completed.

On 21 August 2012, the plaintiff, the first to third defendants, and the trustees for sale of the Church Street property, entered into an agreement styled a Heads of Agreement that was intended finally to settle and dispose of the two sets of proceedings.

Under the Heads of Agreement, a valuer was to be appointed to value the remaining 22 properties. The agreement provides that within 28 days of the last valuation becoming available, the first, second and third defendants are to pay the plaintiff 25 per cent of the "Agreed Value" of the properties, being the value determined by the valuation less 25 per cent of certain costs and less 25 per cent of any debt owed by any of the…

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 Arida v Arida

Details

AGLC: Arida v Arida [2013] NSWSC 1051
Case: [2013] NSWSC 1051
Decision Date: 30 July 2013

CaseChat Overview and Summary

The matter of Arida v Arida involved a dispute regarding the valuation of property. The valuation was required to be conducted as at a particular date, but the valuer made the valuation at a later date and subsequently made another valuation as at the requested date. The dispute arose as to whether the valuer's task was complete upon making the first valuation, and if a term could be implied into the agreement that the valuer was entitled to make a new valuation. The matter was heard in the Family Court of Australia.

The primary legal issue before the court was whether the valuer's task was complete upon making the first valuation and whether a term could be implied into the agreement that the valuer was entitled to make a new valuation. The court needed to determine whether the valuer's task was to provide a valuation as at the particular date requested or whether the valuer was entitled to make a new valuation as at the requested date.

The court found that the valuer's task was to provide a valuation as at the particular date requested and that the valuer was not entitled to make a new valuation as at the requested date. The court held that the term could not be implied into the agreement that the valuer was entitled to make a new valuation, as it was not consistent with the terms of the agreement. The court also held that the valuer's subsequent valuation was not relevant to the agreement, and therefore, the valuer's task was complete upon making the first valuation.

The court ordered that the valuer's subsequent valuation was not to be considered in determining the value of the property. The court further ordered that the parties were to bear their own costs of the proceedings.

Orders