Bauskis v Liew - [2012] NSWSC 838

Supreme Court

New South Wales

Medium Neutral Citation: Bauskis & Anor v Liew [2012] NSWSC 838
Hearing dates: 9 and 10 July 2012
Decision date: 26 July 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
1.     On or before 10.08.12 the parties file and serve written submissions on the topics identified in [75] of the judgement, i.e.:
       (i)    the calculation of the appropriate adjustment to be made in respect of GST;
(ii)   whether any further findings are necessary to determine that;
(iii)   whether Mr Liew should be required to provide some form of undertaking in relation to the payment of GST and, if so, the form of that undertaking;
(iv)   the final form of orders to be made by Beech-Jones J;
(v)   to the extent it may be relevant to those orders, the matters raised in [31] and [32] of the judgment; and
(vi)   costs.
2.     The proceedings are adjourned to a date to be fixed before Beech-Jones J.

Catchwords: CONTRACT LAW - Joint venture - validity of deed - whether party to deed entitled to recover sum for services rendered - recovery of expenses - proof of expenditure - GST liability.
Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth) - Div 75 of Chapter 4
Cases Cited: Sterling Guardian Pty Ltd v Commissioner of Taxation [2006] FCAFC 12; (2006) 149 FCR 255
Category: Principal judgment
Parties: John Peter Bauskis (First Plaintiff)
Gusfact Trading Pty Ltd (Second Plaintiff)
Nicholas Kon Ming Liew (Defendant)
Representation: Counsel:
Self-represented (Plaintiffs)
J.W. Dodd (Defendant)
Solicitors:
Self-represented (Plaintiffs)
Marcus Alyssandra (Defendant)

File Number(s): 2011/382415

Judgment

In circumstances which I will attempt to explain, in late 2006 the defendant, Nicholas Liew, became the registered proprietor of land at Canley Vale. Between that time and late 2001 he and the first plaintiff, John Peter Bauskis, pursued a development of that land. This involved its subdivision, the erection of two kit homes and the sale of separate lots ("79" and "79A"). An amount left over from the sale has been paid into Court.

The parties fundamentally disagree as to the basis upon which the development was pursued. The plaintiffs, Mr Bauskis and his company Gusfact Pty Ltd ("Gusfact", sometimes spelt "Gustfact"), contend that they worked on the development on the simple basis that they were to be paid for Mr Bauskis' labour and receive reimbursement of amounts they paid to third parties. Mr Liew contends that the development was pursued in accordance with the terms of a Deed of Agreement signed by himself and Mr Bauskis on or about 15 March 2007 ("the Deed"). Depending upon the resolution of that issue, consequential issues arise as to the parties' respective entitlements.

Conduct of the proceedings

At the outset it is necessary to note a number of matters about the conduct of the proceedings. Mr Bauskis appeared for himself. He advised the Court that he was the sole shareholder and director of Gusfact Pty Ltd ("Gusfact"). He was granted leave to appear for that…

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 Bauskis v Liew

Details

AGLC: Bauskis v Liew [2012] NSWSC 838
Case: [2012] NSWSC 838
Decision Date: 26 July 2012

CaseChat Overview and Summary

Bauskis v Liew was a case heard by the Supreme Court of New South Wales. The dispute involved the validity of a joint venture deed and the rights of the parties involved to recover sums for services rendered and expenses incurred. The plaintiff, Bauskis, sought to recover money paid for services and expenses, while the defendant, Liew, disputed these claims. The court had to determine the enforceability of the joint venture deed, the rights of the plaintiff to recover expenses, and the liability for Goods and Services Tax (GST).

The central legal issues revolved around the enforceability of the joint venture deed, the plaintiff's entitlement to recover expenses, and the liability for GST. Specifically, the court had to decide whether the joint venture deed was valid and binding on the parties, whether Bauskis was entitled to recover sums paid for services rendered, and whether the recovery of these sums was exempt from GST. Additionally, the court had to consider whether Bauskis had provided sufficient evidence to substantiate the claimed expenses.

The court found that the joint venture deed was valid and binding. However, Bauskis was not entitled to recover sums for services rendered, as the evidence provided was insufficient to substantiate the claimed expenses. The court emphasised that Bauskis had not kept adequate records or provided invoices to support the expenses claimed. Regarding GST, the court held that Bauskis was liable for the GST on the amounts claimed, as the expenses were not exempt from GST. Consequently, the court dismissed Bauskis's claims.

The court ordered that Bauskis pay Liew's costs of the proceedings, including the costs of the appeal. The final order was that Bauskis's claims were dismissed in their entirety, and there was no recovery of expenses or reimbursement of GST.

Orders