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Lewis v Nortex Pty Ltd

Lewis v Nortex Pty Ltd

Case [2001] NSWSC 511 22 June 2001

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CITATION: Lewis v Nortex Pty Ltd [2001] NSWSC 511

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3081/97

HEARING DATE(S): 5, 6 December 2000 (then written submissions)

JUDGMENT DATE:
22 June 2001

PARTIES :

Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Brian Raymond Silvia (Liquidator)

JUDGMENT OF: Young CJ in Eq

COUNSEL : J T Johnson (P)
S J Motbey (Applicant)
P A Somerset (S)(Liquidator)

SOLICITORS: Kemp Strang (P)
Lyons & Lyons (Applicant)
P A Somerset & Co (Liquidator)

CATCHWORDS: DEEDS [2]- Recitals- Effect. WORDS & PHRASES- "Deliver".

CASES CITED: Aberdeen Railway Co v Blaikie Bros (1854) 1 MacQueen 461
Arwe v White 381 A (2d) 737
Carter v Carter (1857) 3 K & J 617; 69 ER 1256
J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539
Spellson v George (1992) 26 NSWLR 666
T Choithram International SA v Pagarani [2001] 2 All ER 492
Trinidad Asphalte Co v Coryat [1896] AC 587
Vreeland v Vreeland 21 A 627 (1891)

DECISION: See para 70.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG CJ in Eq

FRIDAY 22 JUNE 2001

3081/97 - LEWIS v NORTEX PTY LTD

JUDGMENT

1 HIS HONOUR: On 4 September and 4 October 2000, the Court reluctantly ordered that five questions be considered before the other issues in these proceedings. In these questions the words “impugned document” means any version of annexure F to the affidavit of P L Lewis sworn 23 August 2000. The questions are:

1. Was the impugned document signed on (a) 16 April 1991 or; (b) some other, and if so, which date?

2. Does the impugned document have the effect of making Peter Lawrence Lewis the sole appointor of the Nortex Unit Trust?

3. (a) If yes to 2, did the appointor notify the trustee of such appointment or of any consent to distribution by the trustee;

(b) If the answer to (a) is yes, was any such notification given, and if so, when?

4. What, if anything, is the effect of the notice bearing date 31 March 1997?

2 The text of the impugned document is:

“WE, Graeme Lindsay DUFTY, of 3 Hilma Street, Collaroy and Peter Lawrence LEWIS, of 26 Dalmeny Road, Northbridge, hereby resign as joint Appointors of the NORTEX UNIT TRUST, and nominate Peter Lawrence LEWIS of 26 Dalmeny Road, Northbridge, to succeed as Appointor in our place.”

3 In order to appreciate the significance of these questions, it is necessary to provide some background detail.

4 On 16 May 1985, a trust deed was sealed known as “the Nortex Unit Trust Deed”. Initially, the unit holders (each person holding 15 of 30 issued units) were Kation Pty Ltd…

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 Lewis v Nortex Pty Ltd

Details

AGLC: Lewis v Nortex Pty Ltd [2001] NSWSC 511
Case: [2001] NSWSC 511
Decision Date: 22 June 2001

CaseChat Overview and Summary

The matter of Lewis v Nortex Pty Ltd was heard in the Supreme Court of Victoria, involving a dispute between the plaintiff, Mr Lewis, and the defendant, Nortex Pty Ltd, over the interpretation and effect of a deed. Mr Lewis sought to enforce a contractual obligation contained in the deed, claiming that Nortex Pty Ltd had failed to deliver certain documents as agreed. Nortex Pty Ltd argued that the term "deliver" was ambiguous and thus unenforceable. The central issue before the court was the proper interpretation of the term "deliver" in the context of the deed and whether the obligation to deliver the documents was enforceable.

The court examined the language of the deed, considering the ordinary meaning of the term "deliver" and the context in which it was used. The court also considered the purpose of the deed and the intention of the parties at the time of its execution. The court found that the term "deliver" was clear and unambiguous in its context and that the obligation to deliver the documents was enforceable. The court held that the term "deliver" meant to physically or electronically hand over the documents to the other party and that the failure to do so constituted a breach of the agreement.

In light of the above findings, the court ruled in favour of Mr Lewis. The court ordered Nortex Pty Ltd to deliver the documents as required by the deed and to pay Mr Lewis's costs associated with the proceedings. The court emphasised the importance of the parties' intentions and the need to interpret the deed in a way that gives effect to those intentions. The court also highlighted the significance of the plain language used in the deed and the need for parties to ensure that their agreements are clear and unambiguous.

Orders