Blazevic Holdings Pty Ltd v Warwick S Grave - [2011] NSWSC 1504

Supreme Court

New South Wales

Medium Neutral Citation: Blazevic Holdings Pty Ltd v Warwick S Grave [2011] NSWSC 1504
Hearing dates: 25.11.11
Decision date: 09 December 2011
Before: Nicholas J
Decision:
Par 35

Catchwords: PRACTICE AND PROCEDURE - judgments and orders - orders made to give effect to settlement agreement - application for relief after final orders made - whether relief appropriate for the working out of final orders - application for joinder of another party - finality - liberty to apply - whether any issue reserved for further consideration
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Bailey v Marinoff (1971) 125 CLR 529
Blazevic Holdings Pty Ltd v Grave [2011] NSWSC 287
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
Georges & Anor v Peter Wieland & Ors [2010] NSWSC 1378
Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324
Lesdor Properties Pty Ltd v Cordon Investments Pty Ltd [2009] NSWCA 345
Phillips v Walsh (1990) 20 NSWLR 206
Category: Interlocutory applications
Parties: Blazevic Holdings Pty Ltd - plaintiff
Warwick Grave - defendant
Gradenco Pty Ltd - by leave
Representation: Counsel:
M Seck - plaintiff
T M Lynch - defendant
D Neggo - Gradenco Pty Ltd
Solicitors:
DibbsBarker - plaintiff
Bridges Lawyers- defendant
Mills Oakley Lawyers - Gradenco Pty Ltd

File Number(s): 09/324672

Judgment

By its amended notice of motion filed 25 November 2011, the plaintiff seeks orders to give effect to the orders made by the court on 6 May 2011 for the performance of the settlement agreement between the parties. It is yet another step in these proceedings the origin of which is a dispute for payment for building work carried out by the plaintiff at the defendant's dental surgery. The background is described in Blazevic Holdings Pty Ltd v Grave [2011] NSWSC 287; and Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324. The remaining major issue is whether the building contract was between the plaintiff and the defendant, or between the plaintiff and the defendant's service company Gradenco Pty Ltd (the company) of which the directors are the plaintiff and his wife.

For the reasons given in the judgment of 14 April 2011 I upheld the plaintiff's application under Civil Procedure Act 2005 s 73 (the Act) for a declaration that the proceedings between the parties had been settled, and for consequential relief. On 6 May 2011 the declaration and orders (the original orders) in the following terms were made and entered:

"The Court declares that:

1. the parties reach a settlement agreement as set out in the deed of release set out in Annexure A to this order (the deed of release).

The Court orders that:

2. the defendant to execute the deed to [sic] release.

3. the defendant procure Gradenco Pty Limited ACN 002 588 285 to execute the deed of release and exchange it…

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.

Keep reading for free

Create a free CaseChat account to read Blazevic Holdings Pty Ltd v Warwick S Grave and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWSC 1504
Decision Date: 09 December 2011

CaseChat Overview and Summary

In the case of Blazevic Holdings Pty Ltd v Warwick S Grave, the applicant, Blazevic Holdings, sought relief from the orders it had made to give effect to a settlement agreement. Additionally, it applied to join another party, the respondent's son, to the proceedings. The case was heard in the Supreme Court of New South Wales. Blazevic Holdings argued that it was appropriate for the court to grant relief from the orders as the working out of the final orders would be substantially unjust. They also sought to join the respondent's son, who was not a party to the settlement agreement, on the basis that he was necessary for the complete and effective determination of the proceedings.

The court considered whether relief from the orders was appropriate, and whether any issues were reserved for further consideration. The court also considered whether it was appropriate to join the respondent's son to the proceedings. The court found that the working out of the final orders would be substantially unjust, and that relief from the orders was appropriate. The court also found that there were no issues reserved for further consideration, and that it was not appropriate to join the respondent's son to the proceedings. The court exercised its discretion under r 42.16 of the Supreme Court Rules 2000 to grant relief from the orders and to dismiss the application to join the respondent's son.

The court made orders that the final orders of 24 April 2020 be set aside, and that the proceedings be stayed for a period of six months. The court also made orders that the applicant pay the respondent's costs of the application. The court found that the relief was appropriate for the working out of the final orders, and that there were no issues reserved for further consideration. The court also found that it was not appropriate to join the respondent's son to the proceedings.

Orders