IMO Geopec Pty Ltd - [2019] VSC 128

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST

S ECI 2019 00336

IN THE MATTER of an application by GEOPEC PTY LTD (ACN 112 042 501)

BETWEEN:

GEOPEC PTY LTD	Plaintiff
v
NAUMOVSKI INVESTMENTS PTY LTD	Defendant

---

JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2019
DATE OF RULING:	7 March 2019
CASE MAY BE CITED AS:	IMO Geopec Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 128

---

CORPORATIONS – Dissolution of partnership – monies held on trust by accountant – dispute over payment out of surplus trust monies – monies paid into Court – s 69 Trustee Act 1958

CONTRACT – Whether inference can be drawn from deleted words – Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 – Gee Dee Nominees Pty Ltd v Ecosse Property Holdings Pty Ltd [2016] VSCA 23

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Evans, solicitor	Aptum Legal
For the Defendant	Mr Colman

HER HONOUR:

Geopec Pty Ltd Limited (‘Geopec’) has made an application for payment out of funds held in Court. The amount of funds is approximately $80,700. Geopec seeks payment of the total sum. The defendant, Naumovski Investments Pty Ltd (‘Naumovski Investments’) seeks payment of half the funds.

For the reasons below, I find that Naumovski Investments is entitled to half the funds. The other half of the funds should go to Ugrinovski Investments Pty Ltd (‘Ugrinovski Investments’). It did not make an application for payment of funds. However, as discussed below, the same person stands behind both that company and Geopec.

The background to these monies being paid into court includes history of a litigious dispute between former partners, Mr Robert Ugrinovski and Mr Vlado Naumovski. It is necessary to briefly set out some of the background.

Background

On 13 June 2015, Mr Naumovski and Mr Ugrinovski executed a Heads of Agreement on behalf of themselves and their respective associated entities in settlement of Supreme Court of Victoria proceedings numbers S ECI 2014 00088 and S ECI 2014 00189 (‘Heads of Agreement’).

The recitals in the Heads of Agreement (‘HoA’) dated 13 June 2015 provide some further background.

1.The First Plaintiff (Naumovski) and the First Defendant (Ugrinovski) in proceeding S ECI 2014 00088 (Naumovski Proceeding) conduct a property development and investment business through several corporate entitles, including the second to ninth defendants in proceeding S ECI 2014 00189 (Ugrinovski Proceeding)…
…

7.In September 2014, Naumovski commenced the Naumovski Proceeding in which he claims, inter alia, oppression and breach of directors' duties against Ugrinovski pursuant to Points of Claim dated 27 November 2014 (the Claim). Ugrinovski commenced the Ugrinovski Proceeding alleging, inter alia, oppression pursuant to the Points of Defence and Counterclaim dated 17 December 2014 (Counterclaim) (together, the Proceedings).
8.Naumovski and Ugrinovski on their own behalf and on behalf of their respective private companies and trusts have agreed to settle…

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 IMO Geopec Pty Ltd

Details

AGLC: IMO Geopec Pty Ltd [2019] VSC 128
Case: [2019] VSC 128
Decision Date: 7 March 2019

CaseChat Overview and Summary

In the matter of IMO Geopec Pty Ltd, the court was called upon to decide the distribution of funds held in trust by an accountant, following the dissolution of a partnership. The partnership was formed between the parties to undertake a project, and funds were collected and held by an accountant, who was also a partner in the firm. The dispute arose over the distribution of these funds following the dissolution of the partnership, with one party claiming a larger share of the surplus funds. The matter was brought before the court to determine the rightful distribution of the funds.

The legal issues before the court were the interpretation of the terms of the partnership agreement and the applicable legal principles governing the distribution of surplus funds held in trust. The court was also required to consider whether the deletion of certain words from the partnership agreement could be used to infer a different intention on the part of the parties. The court considered the authority of Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd, which held that the deletion of words from a document could not be used to infer a different intention on the part of the parties, unless there was evidence to suggest that the deletion was made in error or by mistake.

The court found that the partnership agreement was clear in its terms and that there was no evidence to suggest that the deletion of certain words was made in error or by mistake. The court held that the parties intended for the surplus funds to be distributed equally between them, and that the deletion of certain words from the agreement did not alter this intention. The court also found that the accountant was a trustee of the funds held in trust, and that the distribution of the funds was governed by the terms of the trust. As such, the court ordered that the surplus funds be distributed equally between the parties, in accordance with the terms of the partnership agreement. The court further ordered that any costs incurred in the proceeding be paid equally by the parties.

Orders