Chikal Pty Ltd & Bi Constructions Pty Ltd - [2010] NSWSC 1286

NEW SOUTH WALES SUPREME COURT

CITATION:
Chikal Pty Ltd & Bi Constructions Pty Ltd [2010] NSWSC 1286

JURISDICTION:

FILE NUMBER(S):
2010/359687

HEARING DATE(S):
4 November 2010

EX TEMPORE DATE:
4 November 2010

PARTIES:
First Plaintiff- Chikal Pty Ltd
Second Plaintiff- Bi Constructions Pty Ltd

JUDGMENT OF:
Slattery J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Plaintiffs- P. Bambagiotti

SOLICITORS:
First Plaintiff-Mr H. Macken, Beston Macken McManis
Secondf Plaintiff- Mr R. Rahal, Cambridge Law Group

CATCHWORDS:
PROCEDURE
miscellaneous procedural matters
application by corporate joint venturers under UCPR 41.3 for payment of funds out of court
funds in Court had been paid in by solicitor for the joint venture
history of disputes and litigation among investors in one of the corporate joint venturers
forseeable that future disputes among investors may lead to an application for part of the funds to be paid back into Court
appliction of Uniform Civil Procedure Act 2005, s 56 considered
HELD: directions given for notice of the application to be given to individual corporate investors in joint venture.

LEGISLATION CITED:
Home Building Act 1989 (NSW), Part 2C
Strata Schemes (Freehold Development) Act 1973
Trustee Act 1925 (NSW), Part 4
Uniform Civil Procedure Rules (UCPR), Part 41, Rule 3(1)

CATEGORY:
Procedural and other rulings

CASES CITED:
BI Constructions Pty Ltd v Shad & Anor; Bayeh v BI Constructions Pty Ltd [2010] NSWSC 484
La Trobe Capital [2009] NSWSC 1118

TEXTS CITED:

DECISION:
1.I adjourn the proceedings for further hearing on 22 November 2010 at 9.30am.
2. I direct the plaintiffs to serve the summons and affidavits in these proceedings together with a copy of these reasons personally on Mr Sam Bayeh and Mr Joe Bayeh (or with their agreement upon their authorised attorney appointed for the purpose), by 5pm Wednesday 10 November 2010.
3. With service in accordance with directrion 2 the plaintiffs should inform each of Mr Samir El Bayeh and Mr Joe Bayeh in writing that if he wishes to oppose the orders sought in the summons that he or his attorney should inform the Court of that on the adjourned date of 22 November 2010.
4. I grant liberty to apply.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

THURSDAY, 4 NOVEMBER 2010

2010/359687 CHIKAL PTY LIMITED & BI CONSTRUCTIONS PTY LTD

EX TEMPORE JUDGMENT

HIS HONOUR: The plaintiffs Chikal Pty Limited (“Chikal“) and BI Constructions Pty Limited (“BI Constructions”) are joint venturers in a property development in Raymond Street Bankstown. The proceeds of the property development are now in Court. The two joint venturers now together seek payment of those funds out of Court.
Each of the plaintiffs have retained independent solicitors, Mr Macken for Chikal and Mr Rahal for BI Constructions. Together they have engaged Mr Bambagiotti of counsel to present their application. The application is made under Uniform Civil Procedure Rules (UCPR), Part 41, Rule 3(1) which provides:
"Deposited funds may not be…

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 Chikal Pty Ltd & Bi Constructions Pty Ltd

Details

AGLC: Chikal Pty Ltd and Bi Constructions Pty Ltd [2010] NSWSC 1286
Case: [2010] NSWSC 1286
Decision Date: 4 November 2010

CaseChat Overview and Summary

Chikal Pty Ltd and Bi Constructions Pty Ltd were parties to a corporate joint venture and had funds in court, paid in by a solicitor for the joint venture. The applicants sought payment of these funds out of court under UCPR 41.3. The court was faced with a history of disputes and litigation among the investors in one of the corporate joint venturers, leading to the foreseeable possibility of future disputes that may result in an application for part of the funds to be paid back into court. The court considered the application of section 56 of the Uniform Civil Procedure Act 2005.

The legal issue before the court was whether the application for payment of funds out of court should be allowed and, if so, whether the individual corporate investors in the joint venture should be notified of the application. The court had to balance the need for the applicants to have access to the funds against the potential interests of the other investors in the joint venture.

The court found that, given the history of disputes among the investors and the foreseeable likelihood of future disputes, it was appropriate to give directions for notice of the application to be given to the individual corporate investors in the joint venture. This would allow them an opportunity to make representations and protect their interests before the court made a decision on the application. The court held that the applicants should provide notice to the other investors and that the court would consider their responses before making a final decision on the application. The court's reasoning was based on the need to ensure fairness and transparency in the proceedings and to protect the interests of all parties involved. The final orders of the court will depend on the outcome of the application and the responses of the other investors.

Orders