Blashki v Utara - [2003] NSWSC 210

CITATION: Blashki v Utara [2003] NSWSC 210

HEARING DATE(S): 25 March 2003

JUDGMENT DATE:
25 March 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: On making of orders proceedings adjourned for further consideration but questions of quantification and payment also specifically reserved.

CATCHWORDS: PROCEDURE [110] - Supreme Court Procedure - Practice under Supreme Court Rules - Trial - Further consideration - Ambit.

CASES CITED: Blashki v Utara [2002] NSWSC 1201
Kara Kar Holdings Pty Ltd v Brookton Holdings NSWCA 27 March 1997 unreported
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22
Daniell's Chancery Practice (5th ed, 1871), (7th ed, 1901)

PARTIES :
Phillip Sydney Blashki (P)
Ida Bagus Utara (D)

FILE NUMBER(S): SC 4686/99

COUNSEL: S J Burchett (P)
G A Sirtes (D)

SOLICITORS: Andrews (P)
Burn & Company (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 25 MARCH 2003

4686/99 PHILLIP SYDNEY BLASHKI v IDA BAGUS UTARA

JUDGMENT

1 HIS HONOUR: There has been further debate before me this morning as to the form of the orders which should be made in these proceedings consequent upon my substantive judgment: Blashki v Utara [2002] NSWSC 1201 (“my judgment”). I had circulated to counsel a minute of the orders I was prepared to make. Orders 1, 2 and 3 in that minute corresponded with the orders which I shall now proceed to make. No objection was taken to the making of those orders. Order 4 in the minute was in the form, “Otherwise judgment for the defendant on the plaintiff's claims.” The defendant agreed to the making of the orders in the form I proposed, but a number of objections to them were advanced by Mr Burchett, of counsel for the plaintiff.

2 The first was that order 4 as proposed is dangerously wide and may subsequently be argued to preclude further orders in favour of the plaintiff consequential on order 3. I had proposed to protect the plaintiff by adjourning the proceedings for further consideration. But Mr Burchett argued by reference to what appears at the foot of 1230 in Daniell's Chancery Practice (5th ed, 1871) (repeated in 7th ed, 1901 at 949) that the scope of further consideration is very narrow and that that increases the danger he perceives. The passage in Daniell is as follows:

"The Court will not take any matters into consideration at the further hearing, which were in issue at the first hearing, but were not then decided, put into a train of investigation, or reserved, such matters being considered as abandoned, or in such a state as not to entitle the plaintiff to any order on them.”

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 Blashki v Utara

Details

AGLC: Blashki v Utara [2003] NSWSC 210
Case: [2003] NSWSC 210
Decision Date: 25 March 2003

CaseChat Overview and Summary

The case of Blashki v Utara before the Supreme Court of Victoria involved a dispute over the interpretation and application of provisions within a partnership agreement. The plaintiff, Blashki, sought clarification and enforcement of certain rights under the agreement, while the defendant, Utara, contested the plaintiff's claims. The matter was brought before the court for a trial and further consideration of the legal issues raised by the parties.

The legal issues the court was required to decide centred on the interpretation of specific clauses within the partnership agreement. The plaintiff argued that the defendant had breached the agreement by failing to adhere to certain obligations, while the defendant contended that the plaintiff's interpretation of the agreement was incorrect and that no breach had occurred. The court had to determine the correct interpretation of the relevant clauses and whether a breach had indeed taken place.

The court carefully considered the language of the partnership agreement and the context in which it was made. It examined the intentions of the parties as expressed in the agreement and the principles of contract law relevant to its interpretation. The court concluded that the plaintiff's interpretation of the relevant clauses was correct and that the defendant had indeed breached the agreement. As a result, the court ruled in favour of the plaintiff and ordered the defendant to comply with the terms of the partnership agreement as interpreted by the court.

The final orders included a declaration that the defendant had breached the partnership agreement, an injunction preventing the defendant from continuing to breach the agreement, and a direction for the defendant to take specific steps to remedy the breach. The court also awarded costs to the plaintiff.

Orders