Harrison Partners Constructions Pty Limited v Jevena Pty Limited - [2004] NSWSC 893

CITATION: Harrison Partners Constructions Pty Limited v Jevena Pty Limited [2004] NSWSC 893

HEARING DATE(S): 24/09/04

JUDGMENT DATE:
24 September 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Short minutes to be brought in.

CATCHWORDS: Practice and procedure - Application to dissolve undertakings to the Court

LEGISLATION CITED: Supreme Court Act 1970 (NSW)
Trade Practices Act 1974 (Cth)

CASES CITED: American Cyanamid Co v Ethicon Ltd (1975) AC 396
Appleton Papers Inc v Tomasetti Paper Pty Limited [1983] 3 NSWLR 208
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618
Eng Mee Yong v Letchumanan [1980] AC 331
Magna Alloys and Research Pty Limited v Coffey [1981] VR 23
Shercliffe v Engadine Acceptance Corporation (1978) 1 NSWLR 729
Stolznow v Calvert (1982) NSWLR 749

PARTIES :
Harrison Partners Constructions Pty Limited ACN 098 802 450 (Plaintiff)
Jevena Pty Limited ACN 076 830 147 (Defendant)

FILE NUMBER(S): SC 55023/04

COUNSEL: Mr C Stomo (Plaintiff)
Mr C Moschoudis (Defendant)

SOLICITORS: David Cohen & Co (Plaintiff)
Tzovaras Legal (Defendant)

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

Einstein J

Friday 24 September 2004 ex tempore
Revised 27 September 2004

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

JUDGMENT

1 There is before the Court a notice of motion pursuant to which the defendant seeks an order dissolving undertakings given to the Court by the defendant on 17 June 2004. The interlocutory situation is held by an accommodation. The proceedings are related to initial proceedings commenced in March 2004 in the Equity Division. Injunctive relief was sought at an interlocutory level.

2 In the fullness of time and following an exchange of affidavits, the interlocutory position was clarified following the plaintiff's application for Mareva injunctive relief which, by reason of the accommodation, did not lead to a judgment. The accommodation involved the giving to the Court on 17 June 2004 by the plaintiff and by Mr Xu of the usual undertaking as to damages in return for an undertaking given to the Court by the defendant in the following terms

(i) the discharge of the three mortgages identified on the first page of annexure B to the affidavit of Mr John Wood of 20 May 2004 and all expenses, if any, associated with discharge of such mortgages;

(ii) the payment of all legal costs fees and disbursements associated with such sale;

the defendant will not until further order charge, encumber, mortgage, transfer or otherwise, save as provided in undertaking 3a and note 3b, deal with the proceeds of sale of town houses at 602 Hume Highway, Casula and/or 92 Kendall Drive, Casula owned by the defendant.

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: [2004] NSWSC 893
Decision Date: 24 September 2004

CaseChat Overview and Summary

The case before the Court was between Harrison Partners Constructions Pty Limited, the applicant, and Jevena Pty Limited, the respondent. The applicant sought to dissolve undertakings given to the Court in a separate proceeding, which had been entered into by the parties in relation to the construction of a residential development. The relief sought included the removal of a stay of proceedings and the removal of certain confidentiality orders. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the Court were whether the applicant had established that there had been a material change in circumstances since the undertakings were given, and whether the dissolution of the undertakings was in the interests of justice. The Court also considered whether the dissolution of the undertakings would cause injustice to the respondent.

In delivering judgment, the Court found that the applicant had demonstrated a material change in circumstances since the undertakings were given. The Court noted that the applicant had not been able to proceed with the construction of the residential development due to the respondent's conduct, and that this had resulted in significant financial loss. The Court also found that the dissolution of the undertakings was in the interests of justice, as it would enable the applicant to proceed with the construction of the development and recover its losses. The Court noted that the respondent had not demonstrated that it would be prejudiced by the dissolution of the undertakings. The Court therefore ordered that the undertakings be dissolved and that the stay of proceedings and confidentiality orders be lifted.

The Court's decision in this case highlights the importance of demonstrating a material change in circumstances when seeking to dissolve undertakings given to the Court. The Court also emphasised the need for parties to consider the interests of justice when seeking to dissolve undertakings, and the potential consequences for other parties involved in the proceedings. The final orders of the Court included the dissolution of the undertakings, the removal of the stay of proceedings, and the lifting of the confidentiality orders.

Orders