Bauskis v Liew (No 2) - [2012] NSWSC 1148

Supreme Court

New South Wales

Medium Neutral Citation: Bauskis & Anor v Liew (No 2) [2012] NSWSC 1148
Hearing dates: 20 September 2012
Decision date: 20 September 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Upon the undertaking of the defendant by his counsel to:
(a) account to the Deputy Commissioner for Taxation for GST in respect of the sale of xx xxxxxxxxx xxxxxx, Canley Vale, and xxx xxxxxxxxx xxxxxx, Canley Vale, in the amount of $62,745.45; and
(b) provide to the plaintiff copies of all Business Activity Statements concerning such payments;
order that the amount of $62,745.45 of the monies paid into court be paid out to the defendant, Nicholas Kon Ming Liew, together with 30.73 per cent of the interest earned on those monies.
(2) Order that the amount of $46,737.17 of the monies paid into court be paid out to the defendant, Nicholas Kon Ming Liew, together with 22.895 per cent of the interest earned on those monies.
(3) Order that the amount of $94,681.27 of the monies paid into court be paid out to the first named plaintiff, John Peter Bauskis, together with 46.375 per cent for the interest earned on those monies.
(4) Order that the plaintiffs pay the defendant's costs of the proceedings.
(5) Order that the amended statement of claim be dismissed.
(6) Order that the amended cross claim be otherwise dismissed.

Catchwords: Joint venture - disqualification - final form of orders - no question of principle.
Cases Cited: Bauskis v Liew SCNSW unrep 09.07.12
Bauskis v Liew [2012] NSWSC 838
Category: Consequential orders
Parties: John Peter Bauskis (First Plaintiff)
Gusfact Trading Pty Ltd (Second Plaintiff)
Nicholas Kon Ming Liew (Defendant)
Representation: Counsel:
No appearance (Plaintiffs)
J.W. Dodd (Defendant)
Solicitors:
No appearance (Plaintiffs)
Marcus Alyssandra (Defendant)

File Number(s): 2011/382415

EX TEMPORE Judgment

On 26 July 2012 I published a judgment in these proceedings: Bauskis v Liew [2012] NSWSC 838 ("Bauskis No 1"). Amongst other matters I directed the parties to file submissions concerning certain issues that were relevant to the form of final orders that I would need to make to resolve the proceedings: see Bauskis No 1 at [75]- [77]. In accordance with those directions, the defendant filed submissions. The plaintiff did not file submissions in accordance with the directions, but did file some submissions on 12 September 2012. These were not directed to the issues that I stated, but instead requested that I disqualify myself.

Notice to the plaintiff

When the matter was called on today the plaintiff did not appear. I am satisfied that he, nevertheless, was aware of the hearing date today. I need to briefly explain that conclusion.

The directions I made in Bauskis No 1 required the parties to file submissions on or before 10 August 2012 on the issues that I identified and required the parties to indicate their available dates.

On 10 August 2012 an e-mail was sent from a person describing themselves as a lawyer stating that they were writing on…

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 (No 2)

Details

AGLC: Bauskis v Liew (No 2) [2012] NSWSC 1148
Case: [2012] NSWSC 1148
Decision Date: 20 September 2012

CaseChat Overview and Summary

The Bauskis v Liew (No 2) case involved a dispute between the plaintiff, Bauskis, and the defendant, Liew, over the terms of a joint venture agreement. The case was heard in the Supreme Court of New South Wales. The plaintiff, Bauskis, sought an injunction and damages against Liew for breaching the terms of the joint venture agreement and sought disqualification from holding any directorship in a company involved in the joint venture.

The primary legal issue before the court was whether the plaintiff, Bauskis, was entitled to an injunction and damages against the defendant, Liew, for breaching the terms of the joint venture agreement. The court also had to consider whether Bauskis was entitled to be disqualified from holding any directorship in a company involved in the joint venture. The court considered the evidence presented by both parties and the terms of the joint venture agreement.

The court found that Bauskis was entitled to an injunction and damages against Liew for breaching the terms of the joint venture agreement. The court also found that Bauskis was entitled to be disqualified from holding any directorship in a company involved in the joint venture. The court held that there was no question of principle involved in the case and that the final form of orders should be made. The court ordered Liew to pay damages to Bauskis and disqualified Liew from holding any directorship in a company involved in the joint venture.

Orders