Jobema Pty Ltd v Zacaropoulos

Jobema Pty Ltd appealed to the Court of Appeal of New South Wales against summary judgment granted to Zacaropoulos. The dispute concerned the distribution and accounting of dividends, with Jobema Pty Ltd arguing that the parties had proceeded on a mutual assumption regarding how these dividends were to be treated, thereby giving rise to an estoppel by convention. Zacaropoulos had sought summary dismissal of Jobema Pty Ltd's defence.

The central legal issue before the Court of Appeal was whether the primary judge erred in rejecting Jobema Pty Ltd's defence of conventional estoppel, and consequently, whether there was a sufficiently high degree of certainty about the ultimate outcome of the proceeding to justify summary judgment. The court was required to consider whether the alleged mutual assumption was established and whether it precluded Zacaropoulos from pursuing their claim.

The Court of Appeal found that the primary judge had erred in dismissing the defence of conventional estoppel. Their Honours reasoned that there was an arguable case that the parties had proceeded on a shared understanding concerning the distribution and accounting of dividends, which had been reflected in the company's books. This mutual assumption, if proven, could prevent Zacaropoulos from asserting a contrary position. The court concluded that the defence raised a triable issue and that summary judgment was therefore inappropriate.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the summary judgment orders. The interlocutory process filed by Zacaropoulos was dismissed, and Jobema Pty Ltd was awarded costs.