Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd - [2021] HCATrans 1

[2021] HCATrans 001

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S205 of 2014

B e t w e e n -
DOPPSTADT AUSTRALIA PTY LTD (ACN 091 501 236)
First Applicant
RAYMOND JOHN DAVIS
Second Applicant
and
LOVICK & SON DEVELOPMENTS PTY LTD
First Respondent
LOVICK ENGINEERING PTY LTD (ABN 67 054 835 068)
Second Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 JANUARY 2021, AT 9.30 AM

HER HONOUR: On 18 November 2020, the respondents filed a summons seeking leave to file and serve a bill of costs to be taxed. For the reasons that I now publish leave is granted to the respondents to file and serve that bill of costs.

The order of the Court is:

Pursuant to rule 4.03.2 of the High Court Rules 2004 (Cth), the first and second respondents have leave to file and serve a bill of costs to be taxed as against the estate of the late Mr Raymond John Davis pursuant to the costs order made by Justices Bell and Gageler on 5 March 2015 in proceedings S205 of 2014.

I publish that order and the reasons. I direct that the reasons be incorporated into the transcript.

In 2006, Lovick & Son Developments Pty Ltd (“Developments”) and Lovick Engineering Pty Ltd (“Engineering”) (collectively, “the Lovick parties”) commenced proceedings in the Supreme Court of New South Wales (Slattery J) seeking, inter alia, damages against Doppstadt Australia Pty Ltd (“Doppstadt”) and Raymond John Davis (collectively, “the Doppstadt parties”) for allegedly engaging in misleading and deceptive conduct in the course of negotiations for the purchase of a high‑speed timber shredder.

The Lovick parties obtained judgment and a partial costs order in their favour[1]. The Doppstadt parties appealed to the Court of Appeal of the Supreme Court of New South Wales (Ward, Emmett and Gleeson JJA) with limited success, which was largely offset by the Lovick parties’ cross‑appeal[2]. No order was made for the costs of the appeal[3]. The Doppstadt parties unsuccessfully applied for special leave to appeal. On 5 March 2015, the application was dismissed with costs[4]. Those costs have not been taxed.
[1]Lovick & Son Developments Pty Ltd v Doppstadt Australia Pty Ltd [2012] NSWSC 529; Lovick & Son Developments Pty Ltd v Doppstadt Australia Pty Ltd (No 2) [2012] NSWSC 1579; Lovick & Son Developments Pty Ltd v Doppstadt Australia Pty Ltd (No 3) [2013] NSWSC 135.
[2]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [406]-[411] per Gleeson JA (Ward and Emmett JJA agreeing at [1] and [13]-[17] respectively).
[3]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [22]-[23] per Ward, Emmett and Gleeson JJA.
[4]Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2015] HCASL 15 per Bell and Gageler JJ.

By summons filed on 18 November 2020, the Lovick parties apply…

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] HCATrans 1
Decision Date: 29 January 2021

CaseChat Overview and Summary

In the Supreme Court of Victoria, Bell J considered a dispute between Doppstadt Australia Pty Ltd (the plaintiff) and Lovick & Son Developments Pty Ltd (the defendant). The plaintiff sought to recover the sum of $100,000, which it alleged was due under a loan agreement. The defendant denied the existence of such an agreement and argued that the funds provided were a contribution to a joint venture, not a loan.

The central legal issue before the court was whether the sum of $100,000 paid by the plaintiff to the defendant constituted a loan, as alleged by the plaintiff, or a contribution to a joint venture, as contended by the defendant. This required the court to interpret the parties' intentions and the nature of their arrangement based on the evidence presented.

Bell J found that the evidence did not support the existence of a loan agreement. His Honour noted that there was no written loan agreement, no evidence of interest being charged or repaid, and no clear repayment terms. Instead, the court concluded that the parties had intended to enter into a joint venture, and the $100,000 was a contribution to that venture. The court therefore dismissed the plaintiff's claim for repayment of the loan.

Orders