Harrison Partners Construction Pty Ltd v Jevena Pty Ltd - [2006] NSWSC 317

CITATION: Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2006] NSWSC 317
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 April 2006

JUDGMENT DATE :
21 April 2006

JURISDICTION: Equity

JUDGMENT OF: Brereton J

DECISION: Order that the Notice of Motion filed on 14 November 2005 and amended on 10 February 2006 be dismissed with costs.

CATCHWORDS: INJUNCTIONS - Interlocutory injunctions - Mareva injunction - reconsideration and variation - where variation sought to provide for legal costs of defence – where order binds only part of defendant’s assets – whether defendant bears onus of showing that proposed expenditure is reasonable and that there are no other available resources – where other resources have been expended by defendant for the benefit of its associates – where application made soon after an earlier unsuccessful application.

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: A v C (No 2) [1981] 2 All ER 126
Bell Wholesale Corp Cop Pty Ltd v Gates Exp0ort Corp (No 2) (1984) 8 ACLR 588
Clark Equipment Credit of Australia Ltd v Conto Factors Pty Ltd (1988) 1 NSWLR 552
Clout (Trustee) v Anskor Pty Ltd [2001] FCA 174, [19]-[20]
Drumdurno Pty Ltd v Braham [1982] 1 ACLC 397
Frigo v Culhaci (NSWCA, 17 July 1998, BC9803225)
Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49
Goumas v McIntosh [2002] NSWSC 713
Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2004] NSWSC 893
Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225
Lewis v Nortex Pty Ltd (in liq) (NSWSC, Hamilton J, 16 February 2004, BC200400815)
M.A. Productions Pty Ltd v Austrama Television Pty Ltd [1982] 1 ACLC 404
Michael Bickley Pty Ltd v Westinghouse Electric Australasia Ltd [1983] 1 ACLC 967
Satna Holdings Pty Ltd v Jokade Pty Ltd [1985] ATPR 40-529
Sent v Jet Corporation of Australia Ltd (1984) 54 ALR 237

PARTIES: Harrison Partners Construction Pty Ltd (plaintiff)
Jevena Pty Ltd (defendant)

FILE NUMBER(S): SC 55023/04

COUNSEL: C Stomo (plaintiff)
N Nicholls (defendant)

SOLICITORS: David H Cohen & Co (plaintiff)
Tzovaras Legal (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

BRERETON J

21 April 2006

55023/04 Harrison Partners Construction Pty Limited v Jevena Pty Limited

JUDGMENT

1 HIS HONOUR: The defendant Jevena Pty Limited, which has paid into court $400,000 pursuant to an asset preservation order, applies to have $198,860.98 released to its solicitors, to fund the defence of these proceedings. As will become apparent, this is not the first occasion on which Jevena has applied for the release of the moneys in court.

2 Jevena is a closely held proprietary company. Its directors are Mr Wood and Mr Wen. Its shareholders are Mr John Wood (30), Mr Guang Bin Wen (10) and Mr Wen’s mother (20). The plaintiff Harrison Partners Construction Pty Ltd, whose principal is Mr Xu, alleges that it was contracted by…

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.

Keep reading for free

Create a free CaseChat account to read Harrison Partners Construction Pty Ltd v Jevena Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWSC 317
Decision Date: 21 April 2006

CaseChat Overview and Summary

The court was presented with an application from Harrison Partners Construction Pty Ltd, seeking reconsideration and variation of an interlocutory Mareva injunction against Jevena Pty Ltd. The injunction, initially granted, restrained the defendant from dealing with specified assets to prevent dissipation before judgment. Harrison sought the variation to ensure the defendant would cover the legal costs of defending the action. The dispute centred on whether the court should allow the variation to bind only part of the defendant’s assets and whether the defendant could meet the onus of proving that the proposed expenditure on legal costs was reasonable and that no other resources were available.

The legal issues before the court were whether the defendant could satisfy the onus of demonstrating the reasonableness of the proposed legal costs expenditure, and whether the defendant had expended other resources for the benefit of its associates. Additionally, the court considered the timing of the application, which was made shortly after an earlier unsuccessful application for a variation. The court examined the defendant's financial position, including the extent of assets available and whether they were sufficient to cover the proposed legal costs without unduly prejudicing the defendant's other financial obligations.

The court held that the defendant had not discharged the onus of showing that the proposed expenditure on legal costs was reasonable and that there were no other available resources. The defendant had already expended other resources for the benefit of its associates, which the court considered relevant to the defendant's financial position. Additionally, the court noted that the application for variation was made shortly after an earlier unsuccessful application, which was a factor in determining the reasonableness of the proposed costs. Consequently, the court declined to vary the injunction to provide for the defendant's legal costs, maintaining that the defendant bear the costs of the application.

No final orders were made in this excerpt of the decision, as the focus was on the interlocutory application for variation of the injunction. The court's decision was to decline the application for variation, and the defendant was required to continue bearing the legal costs of the action.

Orders