Legal Research
Cases
Multi-Span v Portland

Multi-Span v Portland

Case [2001] NSWSC 696 22 August 2001

Contract Formation

Unconscionable Conduct

Undue Influence

Mortgages & Security Interests

No judgment structure available for this case.

Type to search within this case.

CITATION: Multi-Span v Portland [2001] NSWSC 696

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2869/00

HEARING DATE(S): 18/06/01, 19/06/01, 20/06/01, 21/06/01, 22/06/01, 25/06/01, 26/06/01/, 27/06/01, 28/06/01, 29/06/01, 02/07/01

JUDGMENT DATE:
22 August 2001

PARTIES :

Multi-Span Constructions No 1 Pty Limited - First Plaintiff
Stipo Lovrinovic - Second Plaintiff
Vlatko Rasic - Third Plaintiff
Mark Komadina - Fourth Plaintiff
Stipo Kasalo - Fifth Plaintiff
14 Portland Street Pty Limited - First Defendant
CVC Communication & Technology Pty Limited - Second Defendant
Broadway Developments Pty Limited - Third Defendant
Ronald Charles Dunkley - Fourth Defendant
St Helens Broadway Pty Limited - Fifth Defendant
Sam Zdrilic - Sixth Defendant
Gavin Solomon - Seventh Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr P. Roberts SC/Mr M.K. Minehan - Plaintiffs
Mr P.W. Taylor SC/Mr A.M. Colefax - First to Third Defendants
Mr R.C. Dunkley in person - Fourth and Fifth Defendants
Mr G.L. Turner - Sixth Defendant
Mr A.J. Meagher SC/Mr M.J. Leeming - Seventh Defendant

SOLICITORS: LMG Lawyers - Plaintiffs
Landerer & Company - First to Third Defendants
Mr R.C. Dunkley in person - Fourth and Fifth Defendants
Alan Brown & Company - Sixth Defendant
Corrs Chambers Westgarth - Seventh Defendant

CATCHWORDS: CONTRACTS - general contractual principles - construction and interpretation of contracts - alleged uncertainty - effect to be given to manifest commercial intention - MORTGAGES - alleged clog on equity of redemption - right to redeem on payment not compromised - EQUITY - undue influence - presumption of undue influence in solicitor-client relationship - limited relationship - no benefit to solicitor - parties immediately benefited not on notice that solicitor acting - tests to be applied in contemporary circumstances where client is company with commercially astute principals - EQUITY - undue influence - actual undue influence - based on representations found not to have been made - CONTRACTS - statutory remedies - Contracts Review Act relief not available to company - also not available to guaranteeing directors who regularly give such guarantees - CONVEYANCING - caveat against dealings - caveat based on option to purchase lots in unregistered strata plan - caveatable interest arose but ceased when option expired - no power for court to extend caveat to protect interest not claimed therein - no additional interest shown in any event - no right to maintain caveat - CONTRACTS - general contractual principles - no contract arose from incomplete negotiation - no estoppel

LEGISLATION CITED: Contracts Review Act 1980
Real Property Act 1900
Fair Trading Act 1987
Conveyancing Act 1919

CASES CITED: Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Meehan v Jones (1982) 149 CLR 571
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Yerkey v Jones (1939) 63 CLR 649
Commonwealth Bank v Verwayen (1990) 170 CLR 394
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 44
Commonwealth Bank of Australia v Ridout Nominees Pty Ltd [2000] WASC 37
Westpac Banking Corporation v Paterson [2001] FCA 556

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 Multi-Span v Portland

Details

AGLC: Multi-Span Constructions No 1 Pty Ltd v 14 Portland Street Pty Ltd [2001] NSWSC 696
Case: [2001] NSWSC 696
Decision Date: 22 August 2001

CaseChat Overview and Summary

The parties in this case were Multi-Span and Portland, who were involved in a dispute related to the construction and interpretation of contracts. The case was heard in the Supreme Court of New South Wales. The central issue was whether there was an alleged uncertainty in the contracts, and if so, what effect should be given to the manifest commercial intention of the parties. Additionally, the court needed to determine if there was a clog on the equity of redemption in the mortgage agreement, whether there was undue influence in the solicitor-client relationship, and if the statutory remedies under the Contracts Review Act were available to the company and its guaranteeing directors.

The court began by examining the alleged uncertainty in the contracts, determining that the manifest commercial intention of the parties should be given effect. The court then assessed the mortgage agreement, finding that the right to redeem on payment was not compromised, and therefore there was no clog on the equity of redemption. In relation to the undue influence claim, the court held that there was no presumption of undue influence in the limited solicitor-client relationship, as there was no benefit to the solicitor and the parties immediately benefited were not on notice that the solicitor was acting in such a capacity. Furthermore, the court applied contemporary tests to determine whether actual undue influence occurred, finding that it was not based on representations that were not made. Lastly, the court ruled that statutory remedies under the Contracts Review Act were not available to the company or the guaranteeing directors, who regularly provided such guarantees. The court also found that the caveat against dealings, based on an option to purchase lots in an unregistered strata plan, was no longer valid as the caveatable interest had ceased when the option expired.

In summary, the court held that there was no uncertainty in the contracts, no clog on the equity of redemption, no undue influence in the solicitor-client relationship, and no statutory remedies available under the Contracts Review Act. The court further found that the caveat against dealings was invalid as the caveatable interest had ceased when the option expired.

Orders