Gazzard v Hekeik - [2021] NSWSC 1301

Supreme Court

New South Wales

Medium Neutral Citation: Gazzard v Hekeik [2021] NSWSC 1301
Hearing dates: 6 October 2021
Date of orders: 13 October 2021
Decision date: 13 October 2021
Jurisdiction: Common Law
Before: Hamill J (as Duty Judge)
Decision:
(1) The relief sought in the amended notice of motion is refused and the notice of motion is dismissed.
(2) List the matter for hearing on 22 March 2022.
(3) The defendants and cross-claimant are to file and serve any amended defence or amended cross-claim on or before 12 November 2021.
(4) The defendants and cross-claimant are to file and serve any additional evidence (including evidence as to quantum and expert evidence) upon which they intend to rely on or before 12 November 2021.
(5) The Plaintiff and cross-defendants are to file and serve any reply, and/or defence to the cross-claim, on or before 10 December 2021.
(6) The Plaintiff and cross-defendants are to file and serve any evidence in reply (including expert evidence and evidence as to quantum) on or before 10 December 2021.
(7) The matter is listed before the Registrar on 13 December 2021 for further directions including orders for the filing of any additional evidence, provision of court books, and filing of written submissions.
(8) The costs of the notice of motion will be the costs in the cause.

Catchwords:
CIVIL LAW – interlocutory orders – application for summary judgment – application to dismiss or sever cross-claim – whether defendant’s case untenable or destined to fail – loans between property developers – where debt unpaid – where allegation that lender unjustly enriched – where pleadings possibly deficient – where defendant asserts agreement was to repay debt at conclusion – whether relief sought in cross-claim relates to or connected with subject of the statement of claim – defence and cross-claim disclose triable issue – motion dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Collier v Lancer (No 2) [2013] NSWCA 186
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Simmons v Henwood [2013] NSWCA 184
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
State of New South Wales v Williams [2014] NSWCA 177

Category: Procedural rulings
Parties: Richard Warwick Gazzard (Plaintiff/ Second Cross-Defendant)
Anthony Joseph Hekeik (First Defendant/ Cross-Claimant)
Wormald Malanda Pty Limited ACN 603 797 491 (Second Defendant)
Wormald Malanda Pty Limited ATF AJH & RJH Family Trust (Third Defendant)
Wormald Malanda Pty Limited ATF Anthony Hekeik Trust (Fourth Defendant)
Wormald Malanda Pty Limited ATF Raymond Hekeik Trust Claim (Fifth Defendant)
Badajoz Property Pty Limited ACN 603 705 095 (First Cross-Defendant)
Adrian Gazzard (Third Cross-Defendant)
Representation:
Counsel:
B Levet (First Defendant/ Cross-Claimant)
Solicitors:
LAS Lawyers & Consultants (Plaintiff/ Second Cross-Defendant)
Spectrum Legal Group (First Defendant/ Cross-Claimant)

File Number(s): 2021/0040040
Publication restriction: Nil

Judgment

These proceedings relate to business…

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 Gazzard v Hekeik

Details

AGLC: Gazzard v Hekeik [2021] NSWSC 1301
Case: [2021] NSWSC 1301
Decision Date: 13 October 2021

CaseChat Overview and Summary

In Gazzard v Hekeik, the plaintiff, Gazzard, sought summary judgment against the defendant, Hekeik, in relation to an unpaid loan between property developers. The dispute was heard in the Federal Circuit Court of Australia. The plaintiff argued that the defendant's case was untenable or destined to fail, given that the defendant had not made any payment on the loan, and the plaintiff was entitled to the full amount owing. The defendant, however, claimed that an agreement existed to repay the debt at the conclusion of a project, and that the plaintiff had unjustly enriched themselves by not releasing the funds.

The court had to determine whether the defendant's case was untenable or destined to fail, and whether the relief sought in the defendant's cross-claim related to or was connected with the subject of the plaintiff's statement of claim. The court also had to consider whether the defence and cross-claim disclosed a triable issue. The court found that the defendant's case was not untenable or destined to fail, as there was a genuine dispute as to whether an agreement existed to repay the debt at the conclusion of the project. The court also found that the relief sought in the cross-claim was connected with the subject of the plaintiff's statement of claim, and that the defence and cross-claim disclosed a triable issue.

The court dismissed the plaintiff's application for summary judgment and the defendant's application to dismiss or sever the cross-claim. The court found that the defendant's case was not untenable or destined to fail, and that the relief sought in the cross-claim was connected with the subject of the plaintiff's statement of claim. The court found that the defence and cross-claim disclosed a triable issue, and that the matter should proceed to trial. The court did not make any final orders in this interlocutory decision.

Orders