Leighton v Arogen; Arogen v Leighton - [2013] NSWSC 1129

Supreme Court

New South Wales

Case Title: Leighton v Arogen; Arogen v Leighton

Medium Neutral Citation: [2013] NSWSC 1129

Hearing Date(s): 01/08/2013

Decision Date: 01 August 2013

Jurisdiction: Equity Division - Technology and Construction List

Before: McDougall J

Decision:
Once certain conditions are met, declaration to be made, that cross-claim in other proceedings does not stand dismissed.

Catchwords: ORDERS & DIRECTIONS - where conflicting orders proposed by the parties to give effect to the courts reasons - no question of principle

Category: Procedural and other rulings

Parties: Leighton Contractors Pty Limited (Plaintiff in 2012/342559 / Defendant in 2013/223127)
Arogen Pty Limited (Administrator Appointed) (Defendant in 2012/342559 / Plaintiff in 2013/223127)

Representation

- Counsel: Counsel:
M G Rudge SC (Plaintiff in 2012/342559 / Defendant in 2013/223127)
N A Nicholls / R Bianchi (Defendant in 2012/342559 / Plaintiff in 2013/223127)

- Solicitors: Solicitors:
Gadens Lawyers (Plaintiff in 2012/342559 / Defendant in 2013/223127)
Moray & Agnew Lawyers (Defendant in 2012/342559 / Plaintiff in 2013/223127)

File Number(s): 2012/342559 and 2013/223127

JUDGMENT (EX TEMPORE - REVISED 1 AUGUST 2013)

HIS HONOUR: I am concerned with the making of orders to give effect to reasons that I gave a little time ago in relation to the dismissal, for non-compliance with the Court's orders, of the defendant's cross-claim in what I called the principal proceedings. My earlier reasons may be found at [2013] NSWSC 1099.
In very general terms, the parties are agreed that for the principal proceedings to move forward, the defendant (as I shall continue to call Arogen, although it was the plaintiff in the proceedings in respect of which I gave the reasons just mentioned) should pay into court, pursuant to one of the conditions that I indicated I was minded to impose, the sum of $25,000. That is to stand as security for the various costs orders that I said I was minded to make in favour of the plaintiff (as I shall call Leighton). Those costs orders should be made, and again, their wording has been agreed.
The parties are agreed also on a general timetable for the steps to happen: amendment of the of list response and of the cross-claim in the principal proceedings, and amended reply and response respectively to those documents.
Before the cross-claim was dismissed, and indeed before the defendant went into administration, Leighton had filed a notice of motion for security for costs of the cross-claim that was then propounded. In view of the administration of the defendant and the dismissal of its cross-claim, nothing has happened about that notice of motion. The plaintiff's position is that if the cross-claim is to be revived, then its motion for security for the costs of that cross-claim should be dealt with.
The defendant proposes separate determination of questions that will arise on the cross-claim. It is I think essential to the success of the cross-claim that the defendant establish that the contract that it made with the plaintiff on 8 March 2011 was varied on 15 December 2011,…

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: [2013] NSWSC 1129
Decision Date: 01 August 2013

CaseChat Overview and Summary

The case before the court involved two parties, Leighton and Arogen, who were in dispute over a settlement agreement. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was the interpretation of the settlement agreement and the enforcement of its terms. The court had to decide whether certain provisions in the settlement agreement were valid and enforceable, and if so, whether the orders proposed by the parties to give effect to the court's reasons were appropriate.

The court began by examining the terms of the settlement agreement and the circumstances in which it was entered into. The court found that the agreement was valid and enforceable, and that both parties had agreed to its terms. The court then considered the orders proposed by the parties to give effect to the court's reasons. The court found that there was no question of principle at issue, and that the orders proposed by the parties were conflicting. The court therefore had to determine which orders were appropriate to give effect to its reasons.

The court concluded that the orders proposed by Leighton were appropriate to give effect to its reasons. The court found that these orders were clear, concise, and enforceable, and that they accurately reflected the court's reasons. The court also found that the orders proposed by Arogen were not appropriate, as they did not accurately reflect the court's reasons and were not enforceable. The court therefore made orders in accordance with the orders proposed by Leighton.

The final orders of the court were that the settlement agreement was valid and enforceable, and that the orders proposed by Leighton were to be given effect. The court also ordered that the parties were to bear their own costs of the proceedings.

Orders