Milanka Zugic v Jeremy Clarke

[2014] NSWSC 1231

Supreme Court

New South Wales

Medium Neutral Citation:

Milanka Zugic v Jeremy Clarke [2014] NSWSC 1231

Hearing dates:

25 & 27 March 2014

Decision date:

27 March 2014

Before:

Rothman J

Decision:

(1)The defendants, and each of them, any related company, their servants or agents, be restrained from conducting a business for the supply of pre-cast concrete panels other than as part of a joint venture with one or more of the plaintiffs;

(2)The plaintiffs, and each of them, any related company, their servants or agents be restrained from conducting a business for the supply of pre-cast concrete panels other than as part of a joint venture with one or more are of the defendants;

(3)The foregoing will not prevent any one of the plaintiffs or the defendants from manufacturing and supplying pre-cast concrete panels but such manufacture and supply will be subject to the orders that hereafter follow;

(4)The defendants account to the plaintiffs for all property in their possession and profits earned or to be earned from 14 March 2014;

(5)The plaintiffs account to the defendants for all property in their possession and profits earned or to be earned since 14 March 2014;

(6)Costs will be costs in the cause.

Cases Cited:

Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

Category:

Interlocutory applications

Parties:

Milanka Zugic (Plaintiff)
Jeremy Clarke (Defendant)

Representation:

Counsel:
R Badal (Plaintiff)
D Swan (Defendant)
Solicitors:
D.A. Swan & Co (Defendant)

File Number(s):

2014/00088427

Publication restriction:

None

EX TEMPORE Judgment

1. HIS HONOUR: An application is before the Court to determine the substance and/or the contractual obligations of a business arrangement between the parties.

1. It seems to me that there is, whether by misapprehensions or otherwise, or whether by some document associated with the principles that arise out of the High Court in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, either an agreement for the conduct of a joint venture or moneys have been paid in part before the part performance of an agreement relating to a joint venture.

1. However, it has to be said the draft summons that was handed up on the last occasion and which gave rise to the direction to file a summons properly drafted, which direction has not been complied with, is not one that would stand up to strict scrutiny.

1. The affidavit is, at best, one that gives the gist of the material that is sought to be relied upon without being either in proper form or filed on a proper basis. Nevertheless, the Court is satisfied that what has occurred as earlier stated, either as a result of misunderstanding or misapprehensions, is that one side at least has operated on the basis that a joint venture agreement has been reached even if it had not been executed by way of a final agreement.

1. Clearly moneys have been paid out of the accounts of the first named plaintiff into or on behalf of a business conducted by the defendants, or one or more of them.

1. It seems to me, there is an arguable case for the existence of a joint venture. I put it no higher than that. I am mindful that interlocutory orders nowadays allude to the two criteria of the arguability of the case on the one hand and the balance of convenience on the other.

1. Prior to Mr Swan giving me the material from the bar table, the evidence disclosed that each of the parties in these proceedings, to the extent that there is any joint purpose, were seeking to fulfil a contract which is held by one or more of them. On the one side it seems Mr Clarke, or entities associated with Mr Clarke, understand those contracts relate to his entities; on the other side, the plaintiffs, or one or more of them, understand that the contracts relate to a joint venture. There are two things there that are plainly not in the interests of any one of the parties.

1. The first aspect is that any contract to supply, binding on any one of the parties, not remain unfulfilled or, in other words, be completed. Otherwise damages would flow. The second aspect is that the matters that are now in dispute between them should not have the effect of holding up the fulfilment of the contract or prejudice any one of the parties in the ultimate conclusion of this dispute. It seems to me that the best way forward is to do this.

1. First, require each of the parties, that is relevant parties, that includes the plaintiffs and the defendants, to account for the property they hold relating to the pre-cast concrete business and each of the parties to account for transactions that have been made and profits made since 14 March 2014 in relation to the pre-cast concrete business.

1. What I have in mind, is essentially that the parties can go about their own separate ways fulfilling whatever contract they have and that the matter be resolved, ultimately, if it be a joint venture, by the Court at the final hearing or prior thereto and if there not be a joint venture, there may be issues of damages arising as a consequence. None of those damages claims have, thus far, been pleaded.

1. The question is how I do that appropriately issue an order to which the parties can adhere.

1. The Court, of course, does not make orders the consequence of which is a continual supervision by this Court of the orders. It is intended that orders be made, or it is hoped that orders can be made, that would allow the parties to get on with the substance of the business arrangement, if there be one, and ultimately account for the matter by way of damages or specific performance in the longer term when the paperwork is in an appropriate form.

1. Until further order of the Court:

(i)   The defendants, and each of them, any related company, their servants or agents, be restrained from conducting a business for the supply of pre-cast concrete panels other than as part of a joint venture with one or more of the plaintiffs;

(ii)   The plaintiffs, and each of them, any related company, their servants or agents be restrained from conducting a business for the supply of pre-cast concrete panels other than as part of a joint venture with one or more are of the defendants;

(iii)   The foregoing will not prevent any one of the plaintiffs or the defendants from manufacturing and supplying pre-cast concrete panels but such manufacture and supply will be subject to the orders that hereafter follow;

(iv)   The defendants account to the plaintiffs for all property in their possession and profits earned or to be earned from 14 March 2014;

(v)   The plaintiffs account to the defendants for all property in their possession and profits earned or to be earned since 14 March 2014;

(vi)   Costs will be costs in the cause.

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Decision last updated: 03 September 2014