Jericho Developments Pty Ltd v Garden Tower (NSW) Pty Ltd - [2006] NSWSC 595

CITATION: Jericho Developments Pty Ltd v Garden Tower (NSW) Pty Ltd [2006] NSWSC 595

HEARING DATE(S): 05/06/06

JUDGMENT DATE :
21 June 2006

JUDGMENT OF: Gzell J

DECISION: Judgment for $35,810.14. Order defendant to direct solicitors to pay from moneys held in trust account under deed of release. Order the defendant to pay the plaintiff's costs.

CATCHWORDS: CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether plaintiff entitled to contributions under deed of release - Whether evidence of payment provided - Whether cause of action can be raised by amended summons - Whether defendant should be ordered to instruct its solicitor to pay plaintiff from moneys held in trust account under deed of release - Tacked on claim by amendment to summons for amount due under deed of settlement - No relationship to original claim for removal of caveat - Within the jurisdiction of Local Court - Such amendments to be discouraged - Consideration to transfer of proceedings to Local Court under the Civil Procedure Act 2005, s 146(1) or to deny plaintiff its costs

LEGISLATION CITED: Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005

CASES CITED: Baldry v Jackson (1976) 2 NSWLR 415
Global Custodians Ltd v Mesh [1999] NSWSC 624
ANZ Banking Group v Paul Stephen Fuller & Ors [2004] NSWSC 305

PARTIES: Jericho Development Pty Ltd - Plaintiff
Garden Tower (NSW) Pty Ltd - Defendant

FILE NUMBER(S): SC 3669/05

COUNSEL: Mr F Kalyk - Plaintiff
A Gelbart - Defendant

SOLICITORS: Watson & Watson Solicitors
Warren F Ball & Co Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 21 JUNE 2006

3669/05 JERICHO DEVELOPMENTS PTY LTD v GARDEN TOWER (NSW) PTY LTD

JUDGMENT

Nature of dispute

1 The plaintiff, Jericho Developments Pty Ltd, and the defendant, Garden Tower (NSW) Pty Ltd, entered into a deed on 5 May 1999 which purported to transfer from Jericho to Garden Tower, 5 of the 14 remaining units of which Jericho was registered proprietor at 11-27 Wyndham Street, Alexandria.

2 Disputes arose between the parties and proceedings were commenced in this Court. On 24 March 2003, Jericho, Garden Tower and other parties executed a deed of release that, amongst other things, provided that Jericho should execute transfers of the 5 units at stated values to parties notified by Garden Tower and Garden Tower released Jericho from all claims, present or future. The 5 units and their prices were listed in sch 1.

3 On 16 June 2005, Garden Tower placed a caveat on 4 of the other units registered to Jericho, claiming as its equitable interest a half interest in a joint venture with Jericho to construct the building.

4 On 27 June 2005, Jericho issued a summons out of this court claiming a declaration that Garden Tower had no interest in the 4 lots, an order for the removal of the caveat and damages.

5 On 30 June 2005, by consent, the court ordered Garden Tower…

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: [2006] NSWSC 595
Decision Date: 21 June 2006

CaseChat Overview and Summary

The case of Jericho Developments Pty Ltd v Garden Tower (NSW) Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Jericho Developments, sought contributions from the defendant, Garden Tower (NSW), under a deed of release. The dispute arose from a settlement agreement where Garden Tower had agreed to contribute to Jericho Developments for the removal of a caveat. The plaintiff also sought to tack on a claim for an amount due under a deed of settlement. The defendant argued that the plaintiff had not provided evidence of payment and that the tacked-on claim was not related to the original claim for the removal of the caveat.

The court was required to determine whether the plaintiff was entitled to the contributions under the deed of release, whether evidence of payment was provided, whether the cause of action could be raised by an amended summons, and whether the defendant should be ordered to instruct its solicitor to pay the plaintiff from moneys held in a trust account under the deed of release. Additionally, the court had to consider whether the tacked-on claim by amendment to the summons was within the jurisdiction of the Local Court and whether such amendments should be discouraged. The court also considered the potential transfer of proceedings to the Local Court or denying the plaintiff its costs.

The court held that the plaintiff was not entitled to the contributions under the deed of release as there was no evidence of payment provided. The court also found that the tacked-on claim by amendment to the summons was not related to the original claim for the removal of the caveat and was not within the jurisdiction of the Local Court. The court discouraged such amendments and considered transferring the proceedings to the Local Court or denying the plaintiff its costs.

The court ordered that the defendant instruct its solicitor to pay the plaintiff from moneys held in the trust account under the deed of release. The court also considered transferring the proceedings to the Local Court or denying the plaintiff its costs due to the tacked-on claim.

Orders