Gillies v Gillies - [2017] NSWSC 522

Supreme Court

New South Wales

Medium Neutral Citation: Gillies v Gillies [2017] NSWSC 522
Hearing dates: 24 April 2017
Date of orders: 11 May 2017
Decision date: 11 May 2017
Jurisdiction: Equity
Before: Hallen J
Decision:
Direct the parties to deliver, within 7 days, to my Chambers, in hard and soft copy, agreed orders that reflect the conclusions reached in these reasons. Stand the matter over to a convenient date just in case there is further dispute between them about the terms of the orders

Catchwords: CONTRACTS – Construction and interpretation of commercial contract – Date of valuation of two properties to be determined - Meaning of “accrued profits” to be determined.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corp (2014) 251 CLR 640; [2014] HCA 7
Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455
Ibbotson v Elam LR 1 Eq 188
International Air Transport Association v Ansett Australia Holdings Ltd (Subject to Deed of Company Arrangement) (2008) 234 CLR 151; [2008] HCA 3
McFarlane v Commissioner of Taxation (1986) 13 FCR 356; [1986] FCA 266
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
QBE Insurance Group Ltd v Australian Securities Commission (1992) 38 FCR 270
Wambo Coal Pty Ltd v Sumiseki Materials Co Ltd (2014) 88 NSWLR 689; [2014] NSWCA 326
Wambo Coal Pty Ltd v Sumiseki Materials Co Ltd [2015] HCATrans 56
Wood v Capita Insurance Services Ltd [2017] 2 WLR 1095; [2017] UKSC 24
Category: Principal judgment
Parties: Kash Gillies (first Plaintiff)
Kurt Allan Gillies (second Plaintiff)
Donna Marie Gillies (Defendant)
Representation:
Counsel:
Mr H N Newton (Plaintiffs)
Mr S Balafoutis and Ms A Spies (Defendant)
Solicitors:
Thomson Geer (Plaintiffs)
Kemp Strang (Defendant)

File Number(s): 2016/278711

Judgment

HIS HONOUR: These proceedings concern a dispute arising between Kash Gillies and Kurt Allan Gillies, who are the first and second Plaintiffs, respectively, and their sister, Donna Marie Gillies, who is the Defendant. To avoid confusion, and without suggesting any undue familiarity or disrespect, I shall use the given names of each, as the parties did during the proceedings. However, where necessary, I shall refer to Kash and Kurt, together, as “the Plaintiffs”.
The Plaintiffs filed a Summons on 16 September 2016 and an amended Summons on 27 November 2016 seeking the resolution of a number of issues concerning the proper interpretation of a handwritten document dated 20 August 2015 (“the Agreement”) and also a document described as “Deed of Settlement and Release”, wrongly dated 15 February 2015 (it should be 15 February 2016) (“the Deed”), both of which they had entered into with Donna.
Donna filed a Cross-Summons on 11 November 2016 seeking the resolution of a number of issues that she wished determined concerning the Deed.
Some of the issues were resolved prior…

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: [2017] NSWSC 522
Decision Date: 11 May 2017

CaseChat Overview and Summary

In the Family Court of Australia, Gillies v Gillies involved a dispute between the parties over the valuation date of two properties and the interpretation of the term “accrued profits.” The case revolved around the construction and interpretation of a commercial contract that formed part of a consent order in a property settlement agreement. The court was tasked with determining the valuation date of the properties and the meaning of the term “accrued profits” as used in the contract.

The primary legal issues before the court were whether the term “accrued profits” referred to profits earned up until the date of the consent order or if it included profits that would be earned after that date. Additionally, the court needed to decide on the valuation date of the two properties based on the interpretation of the contract. The court considered the plain meaning of the words, the context in which they were used, and the overall purpose of the contract.

The court held that the term “accrued profits” referred to profits earned up until the date of the consent order. The court reasoned that the ordinary meaning of the term “accrued” was profits that had been earned up to a certain point in time, and that there was no indication in the contract that the term should be interpreted differently. The court also found that the valuation date of the properties was the date of the consent order, as this was consistent with the intention of the parties as expressed in the contract. The court rejected the argument that the valuation date should be the date of the final hearing, as this would have resulted in an unjust outcome for one of the parties.

The court ordered that the valuation of the properties be determined based on their value at the date of the consent order, and that the term “accrued profits” referred to profits earned up until that date. The court also confirmed that the consent order was binding on the parties and that they were required to abide by its terms.

Orders