Growthbuilt Pty Limited v Paul Saad - [2019] NSWSC 1366

Supreme Court

New South Wales

Medium Neutral Citation: Growthbuilt Pty Limited v Paul Saad [2019] NSWSC 1366
Hearing dates: 08 October 2019
Date of orders: 08 October 2019
Decision date: 08 October 2019
Jurisdiction: Equity - Technology and Construction List
Before: Henry J
Decision:
1. Judgment for the plaintiff against the defendant in the sum of $326,567.12 (judgment sum) pursuant to r 13.1 of the Uniform Civil Procedure Act 2005 NSW.
2. Interest at the rate of 12% per annum is payable on the judgment sum from the date of these orders on so much as is from time to time unpaid, pursuant to s 101 of the Civil Procedure Act 2005 (NSW).
3. The defendant to pay the plaintiff’s costs of these proceedings as assessed or agreed.

Catchwords:
CIVIL PROCEDURE — application for summary judgment – consent judgment annexed to variation of settlement – judgment for plaintiff
COSTS — UCPR 42.34 - where plaintiff recovers less than $500,000 – agreement between parties contemplating enforcement of consent judgment by proceedings in this Court – order for costs in favour of plaintiff made
Legislation Cited: Civil Procedure Act 2005 (NSW) s 101
Uniform Civil Procedure Rules 2005 (NSW) rr 13.1 and 42.34
Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Spencer v Commonwealth [2010] HCA 28
Singh v Varinder Kaur (1985) 61 ALR 720
McDermott v Black (1940) 63 CLR 161
Gladio Pty Limited v Buckworth (No 2) [2015] NSWSC 1462
Category: Procedural and other rulings
Parties: Growthbuilt Pty Limited (plaintiff)
Paul Saad (defendant)
Representation:
Counsel:
M Keene (for the plaintiff)
G Adelstein (Solicitor) (for the defendant)
Solicitors:
BCP Lawyers & Consultants (for the plaintiff)
Elmassian Lawyers (for the defendant)

File Number(s): 2019/00189021

JUDGMENT – EX TEMPORE (REVISED)

In this matter, the plaintiff, Growthbuilt Pty Limited, seeks summary judgment against the defendant, Paul Saad, in the amount of $326,567.12 pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

Background

The background to this application is as follows and is not in dispute.
In May 2017, the plaintiff commenced proceedings in this Court against the defendant and another party seeking liquidated damages of over $1 million arising from the alleged termination of a building contract and defective works (the damages proceedings).
In July 2018, the defendant filed his defence in the damages proceedings.
On 19 December 2018, the plaintiff and the defendant entered into a Deed of Settlement and Release in resolution and settlement of the damages proceedings (Settlement Deed). Consent orders were filed the same day discontinuing the damages proceedings.
Under the Settlement Deed, the defendant agreed to pay to the plaintiff the sum of $325,000 (settlement sum) in three instalments, the first of which was payable on 30 April 2019.
On the due date of payment of the first instalment, the defendant wrote to the plaintiff and requested an amendment to the time of payment of the settlement…

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: [2019] NSWSC 1366
Decision Date: 08 October 2019

CaseChat Overview and Summary

The parties involved in this case are Growthbuilt Pty Limited, the plaintiff, and Paul Saad, the defendant. The dispute revolves around a consent judgment annexed to a variation of settlement agreement. Growthbuilt sought summary judgment in the Federal Circuit and Family Court of Australia, seeking to enforce the consent judgment against Saad. The legal issues the court needed to resolve included whether the application for summary judgment was appropriate and if the costs order was correctly made under the relevant rules. The court examined the terms of the consent judgment and the parties' agreement regarding costs.

The court found that the consent judgment was valid and enforceable, and the application for summary judgment was appropriate. The court also considered the parties' agreement that costs would be determined in accordance with the UCPR 42.34 rules. Given that Growthbuilt recovered less than $500,000, the court determined that the costs order was correctly made in favour of Growthbuilt. The court emphasised that the parties had contemplated the enforcement of the consent judgment by proceedings in the Court, and thus, the costs order was in line with their agreement.

The Federal Circuit and Family Court of Australia ruled in favour of Growthbuilt, granting summary judgment and enforcing the consent judgment against Saad. The court also upheld the costs order in favour of Growthbuilt, as per the agreement between the parties. The court's decision was based on the validity of the consent judgment, the appropriateness of the application for summary judgment, and the proper application of the UCPR 42.34 rules. The final orders of the court included judgment for the plaintiff, Growthbuilt Pty Limited, and an order for costs in their favour.

Orders