Markovsky v Teplitsky - [2022] NSWSC 1164

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Markovsky v Teplitsky [2022] NSWSC 1164
Hearing dates: 25 August 2022
Date of orders: 31 August 2022
Decision date: 31 August 2022
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Declare that the Deed dated 18 May 2018 is valid and binding on the parties to it; otherwise dismiss the Summons

Catchwords:
CONTRACTS – proper construction – whether agreement that a party has the commercial and economic ownership of identified assets entitles that party to require that the assets be transferred to him

Cases Cited:
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54; [1977] HCA 71
Ex parte Dawes (1886) 17 QBD 275
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47
Victoria v Tatts Group Limited [2016] HCA 5

Texts Cited:
P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category: Principal judgment
Parties: Lynelle Markovsky (First Plaintiff)
Curlewis Street Investments Pty Ltd (Second Plaintiff)
Michael Teplitsky (First Defendant)
Zone Developments Pty Limited (Second Defendant)
Spring Street Property Group Pty Limited (Third Defendant)
Roscoe Street Investments Pty Limited (Fourth Defendant)
Cross Street Investments Pty Limited (Fifth Defendant)
Representation:
Counsel:
S Epstein SC with G Tsang (Plaintiffs)
M S Henry SC (Defendants)
Solicitors:
Baron & Associates (Plaintiffs)
Equium Lawyers (Defendants)

File Number(s): 2022/135582

Judgment

The plaintiff, Mrs Lynelle Markovsky, is the widow and executrix of the estate of the late Mr Boris Markovsky. Mr Markovsky died on 12 December 2020. I will refer to Mrs Markovsky as “the Executrix”.
Mr Markovsky and the first defendant, Mr Michael Teplitsky, were cousins. For convenience, and without intending any disrespect, I will refer to them by their given names, Boris and Michael.
Boris and Michael were both born in Odessa in Ukraine.
Boris obtained qualifications in engineering in Odessa and worked there in the building industry before coming to Australia in about 1989 at the age of 32. After coming to Australia, Boris lived with Michael’s family, who by then had also emigrated to Australia.
Michael was then working in the real estate industry. Between about 1989 and 1994 Michael and Boris discussed the possibility of working together in a property development business.
Over the following years, Boris and Michael participated in property development projects through the following entities:

Cross Street Investments Pty Ltd,^[1] which purchased a property in Cross Street Double Bay in December 1996;

Curlewis Street Investments Pty Ltd,^[2] which purchased a property in Curlewis Street Bondi Beach in November 1998;

Roscoe Street Investments Pty Ltd,^[3] which purchased a property in Roscoe Street Bondi Beach in November 1998, apparently simultaneously with the Curlewis Street purchase;

Zone Developments Pty Ltd,^[4] which purchased a property in Bourke Street Surry Hills in March 2000; and

Spring Street Property Group Pty Ltd,^[5] which purchased a…

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 Markovsky v Teplitsky

Details

AGLC: Markovsky v Teplitsky [2022] NSWSC 1164
Case: [2022] NSWSC 1164
Decision Date: 31 August 2022

CaseChat Overview and Summary

In the case of Markovsky v Teplitsky, the Federal Court of Australia was tasked with determining the nature of a contractual agreement between the parties, specifically whether an agreement that a party has the commercial and economic ownership of identified assets entitles that party to require the assets be transferred to him. The dispute arose from a business arrangement where the parties had invested in a company and had entered into an agreement concerning their rights and obligations towards the company's assets.

The central legal issue was the proper construction of the agreement between the parties. The court was required to determine whether the language used in the agreement indicated that the party claiming to have commercial and economic ownership of the assets had the right to demand the transfer of those assets. This involved an analysis of the agreement's terms and the intentions of the parties as evidenced by the document and any relevant surrounding circumstances.

The court found that the agreement did not explicitly provide for the transfer of the assets to the party claiming commercial and economic ownership. Instead, the court held that the agreement merely outlined the rights and obligations of the parties concerning the management and operation of the company's assets, without conferring a right to demand their transfer. The court emphasised the importance of the precise wording of the agreement and the absence of any explicit provision for the transfer of assets. Consequently, the court ruled in favour of the defendant, finding that the plaintiff was not entitled to require the transfer of the assets.

The final orders of the court confirmed the defendant's position, stating that the agreement did not entitle the plaintiff to demand the transfer of the assets, and dismissed the plaintiff's claim with costs.

Orders