Cappello & Anor v Scrivener & Anor (No 2) - [2021] NSWSC 168

Supreme Court

New South Wales

Medium Neutral Citation: Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168
Hearing dates: 25 February 2021
Decision date: 02 March 2021
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Both defendants liable to pay equitable compensation to the second plaintiff; defendants granted leave to re-open; no order made for indemnity costs

Catchwords:
JUDGMENTS AND ORDERS – what orders should be made to reflect reasons in primary judgment – whether first defendant as well as second defendant liable to pay equitable compensation – quantum of equitable compensation
PRACTICE AND PROCEDURE – application by defendants for leave to re-open to tender documents produced on subpoena – where documents relevant to quantum – small number of documents – whether explanation offered by defendants adequate – whether exceptional circumstances shown – whether justice of case requires that leave be granted

Legislation Cited:
Uniform Civil Procedure Rules 2005 NSW

Cases Cited:
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748
Gaskin v Ollerenshaw [2010] NSWSC 788
Goodman Fielder Consumer Foods Pty Ltd v Graincorp Foods Australia Pty Ltd [2020] NSWSC 706
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141
NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561
Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132
Urban Transport Authority of NSW v Nweiser (1991) 28 NSWLR 471
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672

Category: Costs
Parties: John Cappello (First Plaintiff)
Shaka Holdings Pty Ltd (Second Plaintiff)
John Sidney Scrivener (First Defendant)
Tuscany Corporation Pty Ltd (Second Defendant)
Representation:
Counsel:
D R Pritchard SC with D W Rayment (Plaintiffs)
D B Studdy SC (Defendants)
Solicitors:
RJI Legal (Plaintiffs)
Marsden Law Group (Defendants)

File Number(s): 2018/129029

Judgment

I gave judgment in this matter on 7 December 2020. [1] These reasons assume familiarity with that judgment. I will use the same abbreviations.
1. Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748.
The case concerns an oral agreement that Mr Cappello and Mr Scrivener agree they made on 20 August 2013 to share the profits arising from securing control of and on-selling, or developing, three contiguous parcels of land at Rouse Hill.
The dispute between Mr Cappello and Mr Scrivener was purely factual and was as to whether their agreement was subject to what I have called the Sunset Condition; namely, that Mr Cappello find a purchaser for the combined sites by the Sunset Date.
For the reasons that I summarised at [448], I found that the alleged Sunset Condition was not a term of the 20 August 2013 agreement.
At [465], I found that:

“… there was a partnership between Mr Cappello and Mr Scrivener of the kind for which Mr Capello contends”.

I concluded the judgment stating at [467]-[471]:

“I propose to make a declaration to the effect…

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.

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Details

Case: [2021] NSWSC 168
Decision Date: 02 March 2021

CaseChat Overview and Summary

In Cappello & Anor v Scrivener & Anor (No 2), the appellants, the plaintiffs in the primary proceeding, sought orders reflecting the reasons given in the primary judgment, including the imposition of equitable compensation on the defendants. The respondents, the defendants in the primary proceeding, sought leave to re-open the case to tender documents produced on subpoena that were relevant to the quantum of equitable compensation. The Federal Court of Australia was tasked with determining these issues.

The primary legal issues the court considered were whether the first defendant, as well as the second defendant, should be liable to pay equitable compensation, and if so, the quantum of that compensation. Additionally, the court had to determine whether the respondents were entitled to leave to re-open the case to tender the subpoenaed documents, considering the adequacy of their explanation for the delay and whether exceptional circumstances existed.

The court held that both defendants were liable to pay equitable compensation. In terms of the re-opening application, the court found that the respondents had provided an adequate explanation for the delay in tendering the subpoenaed documents. The court considered the number of documents and their relevance to the quantum of compensation. While acknowledging that the delay was not ideal, the court concluded that the justice of the case required granting the respondents leave to re-open to tender the documents. The court emphasised the importance of ensuring that the quantum of compensation was accurately determined.

The final orders of the court reflected the reasons given in the primary judgment, imposing equitable compensation on both defendants. The court granted the respondents leave to re-open the case to tender the subpoenaed documents, allowing for a more accurate determination of the quantum of compensation.

Orders