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ISIS Projects v Clarence Street

ISIS Projects v Clarence Street

Case [2006] NSWSC 190 29 March 2006

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CITATION: ISIS Projects v Clarence Street [2006] NSWSC 190
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 02/08/05

JUDGMENT DATE :
29 March 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

DECISION: See para 118 - 120 of judgment.

CATCHWORDS: COSTS – Dispute resolved without hearing on merits – No capitulation – Whether any party had substantial success - Whether plaintiff acted reasonably in bringing proceedings – Whether any party was almost certain to have succeeded – Whether orders as to costs are appropriate. - TRUSTS AND TRUSTEES – Judgment creditor claiming to be subrogated to trustee’s right of indemnity out of trust assets – Whether creditor could have priority over purchasers of trust assets from trustee.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Real Property Act 1900 (NSW)
Corporations Act 2001 (Cth)

CASES CITED: ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Jacobs’ Law of Trusts in Australia, 6 ed
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Re Minister for Immigration & Ethnic Affairs; ex parte Li Qin (1997) 186 CLR 622
One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548
Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302
Chief Commissioner of Stamp Duties for NSW v Buckle (1998) 192 CLR 226

PARTIES: ISIS Projects Pty Ltd
v
Clarence Street Pty Ltd

FILE NUMBER(S): SC 55032/03; 55028/05; 55084/04

COUNSEL: Plaintiff: M Elliott
1st Defendant: M Cashion SC, M Southwick
2nd - 4th Defendants: J Stevenson SC, E Muston
5th, 6th & 11th Defendants: M J Dawson
9th Defendant: R Harper SC

SOLICITORS: Plaintiff: Turtons Lawyers
1st Defendant: Watson Mangioni
2nd - 4th Defendants: Aitken McLachlan Thorpe
5th, 6th & 11th Defendants: Gibsons Lawyers
9th Defendant: James R Knowles

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

WHITE J

Wednesday, 29 March 2006

55032/03 ISIS Projects Pty Limited v Clarence Street Pty Limited
55028/05 ISIS Projects Pty Limited v Clarence Street Pty Limited
55084/04 ISIS Projects Pty Limited v Clarence Street Pty Limited

JUDGMENT

1 HIS HONOUR: These are applications for costs in various proceedings following the delivery of judgment by McDougall J in ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714. ISIS Projects Pty Ltd is a builder. It entered into a construction contract with Clarence Street Pty Limited. On 13 August 2004, McDougall J gave judgment in favour of ISIS on its claim pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) to recover an unpaid portion of a progress claim. On 26 August 2004, judgment was entered for ISIS against Clarence in the sum of $910,847.92.

2 On the following day, ISIS issued a writ for the levy of property of Clarence to enforce the judgment. On the same…

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 ISIS Projects v Clarence Street

Details

AGLC: Isis Projects v Clarence Street [2006] NSWSC 190
Case: [2006] NSWSC 190
Decision Date: 29 March 2006

CaseChat Overview and Summary

ISIS Projects brought a proceeding against Clarence Street seeking an order that it be subrogated to the rights of a trustee, which would allow it to claim an indemnity out of trust assets. The dispute was resolved without a hearing on the merits, and the case was determined on the basis of an agreed statement of facts. The primary issue for the court was whether any party had a substantial success, and whether the plaintiff had acted reasonably in bringing the proceeding. The court also considered whether any party was almost certain to have succeeded, and whether orders as to costs were appropriate.

The court found that none of the parties had a substantial success, as the dispute was resolved without a hearing on the merits. The court also found that the plaintiff had acted reasonably in bringing the proceedings, as there was a genuine and arguable case for the relief sought. The court held that the plaintiff was not almost certain to have succeeded, as there were significant questions of law and fact that remained unresolved. The court concluded that orders as to costs were appropriate, and that the plaintiff should be awarded costs on an indemnity basis.

The court held that the creditor could not have priority over purchasers of trust assets from the trustee, as the creditor had not acted with reasonable promptness in seeking to enforce its rights. The court found that the creditor had delayed in bringing the proceeding, and had not acted with the necessary urgency to establish its priority over the purchasers. The court held that the creditor's delay had prejudiced the purchasers, and that it would be unjust to allow the creditor to assert its rights against the purchasers.

The court ordered that the plaintiff be awarded costs of the proceeding on an indemnity basis, and that the defendants pay those costs within 28 days. The court also ordered that the plaintiff's claim for subrogation be dismissed, and that the defendants be exonerated from any further liability in relation to the proceeding. The court held that the dismissal of the claim for subrogation did not affect the rights of any party in relation to the trust assets, and that the parties were free to pursue any other available remedies.

Orders