Elford v Minty - [2017] NSWSC 1455

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Elford v Minty [2017] NSWSC 1455
Hearing dates: 1 September 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Payment out of part of the funds in Court up to $50,000 permitted. Costs reserved.

Catchwords: PRACTICE AND PROCEDURE – joint venture dispute – plaintiff seeks the taking of joint venture accounts - application for the payment of money out of Court – the first defendant paid $375,000 into Court in April 2015 pending final determination of the proceedings – payment made in settlement of interlocutory application – plaintiff claims beneficial interest in defendants’ properties - protracted legal proceedings - proceedings referred out to a referee for the taking of partnership accounts – applicant/first defendant seeks payment out of Court from the funds in Court of the sum of up to $100,000 to pay legal fees – whether an allowance on account of the first defendant’s legal fees should be permitted to be taken from the funds in Court - whether the applicant/first defendant has other sources of funds to pay his legal fees.
Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Real Property Act 1900
Uniform Civil Procedure Rules 2005, r 41.3
Cases Cited: A v C (No. 2) [1981] QB 961
Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174
Goumas v MacIntosh [2002] NSWSC 713
Category: Procedural and other rulings
Parties:
Proceedings:
Plaintiff/First Cross-defendant: Thomas Henry Elford
Second Plaintiff: Telford Locums Pty Ltd (ACN 108 738 727)
First Defendant: Marcus James Minty
Second Defendant/First Cross-claimant: Michael Frederick Minty
Third Defendant/Second Cross-claimant: Jennifer Louise Minty
Second Cross-defendant: Telford Locums Pty Ltd
Notice of Motion:
Applicant: Marcus James Minty
Respondent: Thomas Henry Elford
Representation:
Counsel:

Plaintiff/ First Cross-defendant/Respondent and Second Cross-defendant: S. Wells
First Defendant/Applicant: A. d’Arville
Second Defendant/First Cross-claimant and Third Defendant/ Second Cross-claimant: Y. Maksisi

Solicitors
Plaintiffs/ First Cross-defendants/Respondent and Second Cross-defendant: Hedges Bhatty
First Defendant/Applicant: John de Mestre & Co Pty Ltd
Second Defendant/ First Cross-claimant and Third Defendant/Second Cross-claimant: Uther Webster & Evans

File Number(s): 2014/371874
Publication restriction: No

Judgment

On 2 April 2015 the Court ordered the first defendant, Mr Marcus Minty, to pay the sum of $375,000 into Court, “pending final determination of the matter upon the sale of the property identified as Folio A/366530”. Mr Minty now applies for the release to him of up to $100,000 of those monies. He claims he needs these funds so he can pay his legal fees in these proceedings.
Between 2009 and 2014 the first plaintiff, Mr Thomas Elford contends that he and the first defendant, Mr Marcus Minty, operated a joint venture for the subdivision and development of two South Coast properties, through the corporate vehicle of the second plaintiff, Telford Locums Pty Ltd (“Locums”). Mr Elford alleges their joint venture relationship came to an end after Mr Minty failed adequately to…

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 Elford v Minty

Details

AGLC: Elford v Minty [2017] NSWSC 1455
Case: [2017] NSWSC 1455
Decision Date: 27 October 2017

CaseChat Overview and Summary

Elford sued Minty in the Supreme Court of New South Wales over a joint venture dispute. Elford sought to take joint venture accounts and claimed a beneficial interest in properties held by the defendants. Minty paid $375,000 into court in April 2015 to settle an interlocutory application. Elford now sought an order for an allowance on account of legal fees to be paid out of the funds in court. The court had to decide whether to permit the defendant to take a sum of up to $100,000 from the funds in court to pay legal fees and whether the defendant had other sources of funds to pay the fees.

The court considered whether it was appropriate to allow the defendant to draw on the funds in court to pay legal fees. The court noted that the parties had engaged in protracted legal proceedings and that the proceedings had been referred out to a referee for the taking of partnership accounts. The court held that it was appropriate to permit the defendant to draw on the funds in court to pay legal fees, but only to the extent of $100,000. The court also held that the defendant had other sources of funds to pay his legal fees.

The court ordered that the sum of $100,000 be paid out of the funds in court to the defendant to pay legal fees. The court also ordered that the referee prepare a final account of the joint venture and that the account be submitted to the court for approval. The court further ordered that the parties bear their own costs of the proceedings.

Orders