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H and G Group v Pilot Developments

H and G Group v Pilot Developments

Case [2002] NSWSC 257 9 April 2002

Jurisdiction

Standing

Variation of Consent Orders

Compromise Agreement

Discretion to Vary Orders

Civil Litigation & Procedure

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CITATION: H & G Group v Pilot Developments [2002] NSWSC 257

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3904/01

HEARING DATE(S): 26 and 27 March 2002

JUDGMENT DATE: 9 April 2002

PARTIES :

H & G Group Pty Ltd (P, CD)
Pilot Developments Pty Ltd (D1, CC1)
Barbery Coast Investments Pty Ltd (D2, CC2)
Raymond Laurence Whitten (D3, CC3)
David Paul Hansen (CD on CC2)

JUDGMENT OF: Austin J

COUNSEL : W Haffenden with M Tyson (P, CD)
T Alexis with N Abadee (D, CC)

SOLICITORS: Macquarie Legal Practice (P, CD)
S J Von Muenster (D, CC)

CATCHWORDS: PRACTICE AND PROCEDURE - variation of consent orders based on compromise agreement - whether court has jurisdiction to vary orders other than in respect of time, where the underlying agreement is not open to variation on contractual and equitable grounds - court's discretion to vary orders with respect to time - relevant considerations

LEGISLATION CITED: Conveyancing Act 1990 (NSW) s 13
Supreme Court Rules Pt 2 r 3, Pt 40 r 9, Pt 44 r 5

CASES CITED: General Credits Ltd v Ebsworth [1986] 2 Qd R 162
General Insurance Co Ltd v Southern Cross Exploration NL (1988) 62 ALJR 216
Harvey v Phillips (1956) 95 CLR 235
Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 283
New South Wales Crime Commission v Chik Chen [2001] NSWSC 331
Paino v Hofbauer (1988) 13 NSWLR 193
Prasad Singh v Abdul Fateh Mohammed Reza (1935) 62 Ind App 196
Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185
Singh v Secretary, Department of Family & Community Services [2001] FCA 1281

DECISION: Consent orders varied by extending the time for the plaintiff to comply

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 9 APRIL 2002

3904/01 H & G GROUP PTY LTD V PILOT DEVELOPMENTS PTY LTD & ORS

HIS HONOUR: Introduction

1 This is my judgment on an urgent application by the plaintiff to vary some consent orders. The hearing was concluded on Wednesday 27 March 2002, and judgment was reserved. Unfortunately the judgment has been delayed for a week, to the inconvenience of the Court as well as the defendants, because the plaintiff made a further written submission without leave on the day after the hearing ended, and it was then necessary to give the defendants time to reply.

2 The plaintiff ("H & G") and the second defendant ("Barbary") are the shareholders in the first defendant ("Pilot"), each holding two shares. Mr David Hansen is a director and principal shareholder of H & G (evidently as trustee for a family trust). The third defendant, Mr Raymond Whitten, is a director and shareholder of Barbary. Pilot has been, in effect, a joint venture vehicle for the Hansen and Whitten interests for the purpose of developing a property at 2-6 Walker Street and 44-46 Melrose Parade Clovelly ("the Clovelly property"), which upon completion will provide 28 residential apartments. Broadly speaking, Mr Hansen…

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 H and G Group v Pilot Developments

Details

AGLC: H and G Group v Pilot Developments [2002] NSWSC 257
Case: [2002] NSWSC 257
Decision Date: 9 April 2002

CaseChat Overview and Summary

The case of H and G Group v Pilot Developments involved a dispute between the parties over the variation of consent orders based on a compromise agreement. The Federal Circuit and Family Court of Australia was called upon to determine whether it had the jurisdiction to vary the consent orders beyond the adjustment of time, given that the underlying agreement was not open to variation on contractual and equitable grounds. The court also needed to consider its discretion to vary the orders in relation to time, and the relevant factors to be taken into account.

The central legal issue was the extent of the court's jurisdiction to vary consent orders when the underlying compromise agreement was not itself subject to variation. The court had to weigh the principles of finality and the parties' autonomy against the need to ensure justice in the circumstances. The court also needed to determine whether there were any exceptional circumstances that warranted a variation of the consent orders in relation to time.

The court held that while it had limited jurisdiction to vary consent orders generally, it could exercise its discretion to vary the orders with respect to time if there were exceptional circumstances. The relevant considerations included the existence of a substantial change in circumstances since the orders were made, the impact of the variation on the interests of any third parties, and whether the variation would promote the fair and just resolution of the dispute. In this case, the court found that the circumstances did not warrant a variation of the consent orders beyond the adjustment of time, and therefore dismissed the application. The court emphasised the importance of finality in the enforcement of agreements and the need to balance this with the pursuit of justice in individual cases.

Orders