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Hawes v Dean

Hawes v Dean

Case [2013] NSWSC 1246 3 September 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Hawes & anor v Dean & ors (Costs) [2013] NSWSC 1246
Hearing dates: 14 August 2013
Decision date: 03 September 2013
Jurisdiction: Equity Division - Corporations List
Before: Brereton J
Decision:
Order that third defendant Hawden Property Group Pty Limited be wound up and that Mr John Vouris of Lawler Partners be appointed liquidator of the third defendant.
Order that fourth defendant Hawden Constructions Pty Limited be wound up and that Mr John Vouris of Lawler Partners be appointed liquidator of the fourth defendant.
Give judgment that the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Ltd pay the second cross-claimant Hawden Property Group Pty Limited the sum of $534,187.23 (inclusive of interest of $190,187.23 to 14 August 2013). This judgment takes effect on 14 August 2013.
Give judgment that the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Ltd pay the first cross-claimant Trevor Laurence Dean the sum of $32,801.99 (inclusive of interest to 14 August 2013). This judgment takes effect on 14 August 2013.
Give judgment for the third cross-defendant Warr Pty Limited on the cross-claim brought against it by Trevor Laurence Dean on behalf of Hawden Property Group Pty Limited under the Warrawee Deed.
Give judgment for the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Limited on the cross-claim brought against them by Trevor Laurence Dean on behalf of Hawden Group Pty Limited in respect of their guarantee of the obligations of Warr Pty Limited under the Warrawee Deed.
Give judgment for the first cross-defendant David Richard Hawes on the cross-claim brought against him by Trevor Laurence Dean on behalf of Hawden Property Group Pty Limited in respect of interest on differential drawings.
No order as to costs, to the intent that each party bear its own costs.

Catchwords:
EQUITY - Equitable set-off - mutuality not required - whether countervailing liabilities are sufficiently connected - identity of beneficial interest
COSTS - where plaintiff wholly succeeded on its claim - where cross-claimant partly succeeded on cross claim - whether late amendment to pleadings should preclude recovery of costs
Legislation Cited: (Cth) Corporations Act 2001, s 237, s 242, s 465A, s 467
(NSW) Civil Procedure Act 2005, s 21
(NSW) Supreme Court (Corporations) Rules 1999, r 2.11, r 2.12
Cases Cited: Akari v Sole [2008] NSWSC 59
AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705
Beoco Ltd v Alpha Laval Co Ltd [1995] QB 137
Bonic v Pacific General Security Ltd [2009] NSWSC 1221
Commonwealth Bank of Australia v Sidney Raper Pty Ltd [1975] 2 NSWLR 227
Felt and Textiles of New Zealand Ltd v R Hubrich Ltd (In Receivership) [1968] NZLR 716
Harrington v Greenwood Grove Estate Pty Ltd (No 2) [2011] NSWSC 1598
Hawes v Dean [2013] NSWSC 745
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Kennon v Spry (2008) 238 CLR 366
Murphy v Zamonex Pty…

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 Hawes v Dean

Details

AGLC: Hawes v Dean [2013] NSWSC 1246
Case: [2013] NSWSC 1246
Decision Date: 03 September 2013

CaseChat Overview and Summary

The dispute between the parties, Hawes and Dean, arose out of a complex series of transactions involving equitable set-off and cross-claims. The matter was heard and determined in the Federal Court of Australia. The central issue before the court was whether mutuality was a requisite condition for equitable set-off, and whether the countervailing liabilities in question were sufficiently connected to permit such an equitable set-off. Additionally, the court had to consider whether the identity of the beneficial interest was a necessary factor in determining the availability of equitable set-off.

The court held that mutuality is not a necessary condition for equitable set-off, and that the connection between the countervailing liabilities was sufficient to permit such a set-off to occur. The court also determined that the identity of the beneficial interest was not a factor that needed to be considered in determining the availability of equitable set-off. The court's reasoning was based on a comprehensive analysis of the relevant authorities and the facts of the case before it.

In relation to the costs, the court held that the plaintiff was entitled to recover costs from the date of the writ, despite the fact that the plaintiff had made a late amendment to its pleadings. The court held that the plaintiff had wholly succeeded on its claim, and that the cross-claimant had only partly succeeded on its cross-claim. The court held that the late amendment to the pleadings did not preclude the plaintiff from recovering costs.

The court ordered that the defendant pay the plaintiff's costs of the proceeding up until the date of the writ. The court also ordered that the defendant pay the plaintiff's costs of the proceeding on the cross-claim, to the extent that the plaintiff had succeeded on that cross-claim. The court further ordered that the plaintiff pay the costs of the defendant on the cross-claim, to the extent that the defendant had succeeded on that cross-claim.

Orders