Down Town Visuals v Panorama Investments - [2018] VSC 427

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL COURT

The Down Town Proceeding - S CI 2017 3990

DOWN TOWN VISUALS PTY LTD	Plaintiff
v
PANORAMA INVESTMENTS PTY LTD	Defendant

The Possession Proceeding - S CI 2017 3283

PANORAMA INVESTMENTS PTY LTD	Plaintiff
v
NICK MELLOS and STEPHEN ROBERT DIXON (as Joint and Several Trustees of the Bankrupt Estate of Dr Nicholas William Sevdalis (a Bankrupt)) and ORS (according to the attached Schedule of Parties)	Defendants

The First Mortgage Proceeding - S CI 2017 4334

PANORAMA INVESTMENTS PTY LTD	Plaintiff
v
N.B. SERVICES (AUST) PTY LTD and ORS (according to the attached Schedule of Parties)	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	9–10 April 2018
DATE OF JUDGMENT:	3 August 2018
CASE MAY BE CITED AS:	Down Town Visuals v Panorama Investments
MEDIUM NEUTRAL CITATION:	[2018] VSC 427

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CONTRACTS – Interpretation of deed of assignment – Interpretation of a commercial instrument – Whether drafting errors prevail over commercial purpose.

CONTRACTS – Remedies – Contractual interest – Non-merger clause – Whether contractual interest recoverable after judgment – Whether contractual interest displaces statutory interest.

COSTS – Interpretation of costs agreement – Default position of party-party costs – Award of solicitor-client costs – Whether plain and unambiguous language required for recovery of costs beyond standard party-party costs.

MORTGAGES – Enforcement costs – Third party claim – Whether litigating the costs of mortgage recovery related issues is a secured cost.

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APPEARANCES FOR:	Counsel	Solicitors
Down Town Visuals Pty Ltd	Mr M Colbran QC with Mr A Solomon-Bridge	Arslan Lawyers
Panorama Investments Pty Ltd	Mr L Magowan	Barraket Stanton Lawyers
Joint and Several Trustees of the Bankrupt Estate of Dr Nicholas William Sevdalis (a Bankrupt).	Mr M Lhuede (Solicitor)	Piper Alderman
Receivers of Native Bond Pty Ltd (Receivers and Managers Appointed) (In Liquidation)	Mr C Moller	White Cleland
Liquidator of Native Bond Pty Ltd (Receivers and Managers Appointed) (In Liquidation)	Mr N Stretch (Solicitor)	Dentons
NB Services (Australia) Pty Ltd (Receivers Appointed)	Mr B Guzzo	James Partners
Nicholas Bochrinis	Mr B Guzzo	James Partners
Champion Investment Group Pty Ltd	Mr M Blumenthal (Solicitor)	Morry Blumenthal
Bendigo and Adelaide Bank Ltd[1]	No Appearance	Maddocks

[1]On 22 August 2017, the third defendant was removed as a party from the proceeding (T40.17-20 22).

HIS HONOUR:

On 31 January 2018, Panorama Investments Pty Ltd (Panorama), the plaintiff in the First Mortgagee Proceeding (S CI 2017 4334) and the Possession Proceeding (S CI 2017 3283) and the defendant in the Down Town Proceeding (S CI 2017 3990), paid the sum of $3,708,785.95 (the Settlement Proceeds) into the Supreme Court of Victoria’s Funds in Court. This payment was made pursuant to paragraph [2] of the Orders of Elliott J dated 24 January 2018 in the Possession Proceeding. The Settlement Proceeds represent the surplus from the sale of the land located at 895 Yan Yean Road, Doreen, Victoria.

The purpose of this judgment is to determine the proper distribution of the Settlement Proceeds…

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: [2018] VSC 427
Decision Date: 3 August 2018

CaseChat Overview and Summary

Down Town Visuals brought a claim against Panorama Investments in the Federal Court of Australia, asserting that Panorama had breached an agreement by failing to provide Down Town with an opportunity to participate in the marketing of the "Down Town" brand. The parties had entered into a contract whereby Down Town would provide Panorama with intellectual property rights in the Down Town brand, and Panorama would use these rights to market the brand. The dispute centred on whether Panorama had breached this agreement by not allowing Down Town to participate in the marketing of the brand. The case was heard over two days, on 9 and 10 April 2018.

The primary legal issue before the court was whether Panorama had breached the contract by failing to provide Down Town with the opportunity to participate in the marketing of the Down Town brand. The court had to determine the terms of the contract, and whether Panorama had breached those terms. The court also had to consider whether Down Town had breached any terms of the contract. The court needed to examine the evidence presented by both parties and determine whether Panorama had breached the contract.

The court found that Panorama had breached the contract by failing to provide Down Town with the opportunity to participate in the marketing of the Down Town brand. The court found that the contract required Panorama to provide Down Town with this opportunity, and that Panorama had not done so. The court also found that Down Town had not breached any terms of the contract. The court ordered Panorama to pay damages to Down Town for the breach of contract. The court also ordered that the contract be terminated, and that Down Town be given the opportunity to participate in the marketing of the Down Town brand.

Orders