Nutech Wall & Ceiling Systems v VMF Holdings (NSW) - [2008] NSWSC 980

CITATION: Nutech Wall & Ceiling Systems v VMF Holdings (NSW) [2008] NSWSC 980

HEARING DATE(S): 2 September 2008; 12 September 2008

JUDGMENT DATE :
19 September 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Counsel for the defendants to bring in short minutes of order in accordance with reasons.

CATCHWORDS: JOINT VENTURE - expert to determine profit or loss of joint venture - date for striking accounts - profit or loss to be determined at the time of completion of the projects not the date of termination of the joint venture - whether referee's report should be adopted in part and conclusion drawn as to alleged profit of joint venture on basis of materials before referee - question referred back - no question of principle.

LEGISLATION CITED: Partnership Act 1892 (NSW)

CASES CITED: Beale v Trinkler [2007] NSWSC 1058
ACE Project Group Pty Ltd v Ginger Development Enterprises Pty Ltd [2006] NSWSC 962

PARTIES: Nutech Wall & Ceiling Systems Pty Ltd
v
VMF Holdings (NSW) Pty Ltd & 6 Ors

FILE NUMBER(S): SC 2904/02

COUNSEL: Plaintiff: A Ogborne
4th-7th Defendants: N Cotman SC and I Griscti

SOLICITORS: Plaintiff: Miller Noyce
4th-7th Defendants: Dennis & Company Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 19 September 2008

2904/02 Nutech Wall & Ceiling Systems Pty Ltd v VMF Holdings (NSW) Pty Ltd & 6 Ors

JUDGMENT

1 HIS HONOUR: On 4 December 2007, Mr Andrew Ross of Ferrier Hodgson was appointed as a referee to inquire into and report on the question of what was the profit and loss of the joint venture alleged in paras 29 and 31 of the plaintiff’s amended statement of claim. Whilst there is a dispute as to the identity of the parties to the joint venture, it is common ground that a joint venture was entered into. It is also common ground that the joint venture commenced on 1 April 2001. It is also common ground that various projects were completed, or commenced, or obtained, pursuant to the joint venture. The plaintiff alleges that the defendants repudiated the joint venture agreement and that it accepted that repudiation by notice of termination of 9 April 2002. Whilst the defendants deny that the joint venture agreement was repudiated, it is common ground that the joint venture agreement was terminated on 9 April 2002.

2 Whilst neither the plaintiff nor the defendants plead that the joint venture amounted to a partnership, it is common ground that the parties to the joint venture, whoever they might be, were to make their particular contributions to the joint venture. It is also common ground that the profits of the joint venture were to be shared equally between whomever were the parties to it. So far as appears from the pleadings, the joint venture has all the hallmarks of a partnership.

3 Mr Ross provided his report on 1 May 2008. A central issue he had to decide was whether the profit or loss of the…

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.

Keep reading for free

Create a free CaseChat account to read Nutech Wall & Ceiling Systems v VMF Holdings (NSW) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 980
Decision Date: 19 September 2008

CaseChat Overview and Summary

Nutech Wall & Ceiling Systems and VMF Holdings were involved in a dispute that was heard in the court. The disagreement centred on the determination of profits or losses within their joint venture. The parties contested the approach to calculating the joint venture's financial outcomes, particularly whether it should be based on the completion of the projects or the termination of the joint venture. The matter was brought before the court to resolve these legal issues.

The court had to decide on the appropriate method for determining the joint venture's profit or loss. This included whether an expert's report should be partially adopted and whether the conclusions drawn about the joint venture's profit should be based on the materials presented to the referee. The court also needed to clarify whether the determination should be based on the completion of the projects or the termination of the joint venture. These questions were pivotal in resolving the dispute between the parties.

In its reasoning, the court emphasised that the profit or loss of the joint venture should be determined at the time of project completion rather than the date of termination. The court noted that the referee's report should not be partially adopted to draw conclusions about the joint venture's profitability without considering all relevant materials. The court found that the dispute did not raise any new principles of law but required a detailed examination of the evidence and the method of calculating profits. Consequently, the matter was referred back for further consideration, without establishing any new legal principles.

The court's decision did not provide a final resolution to the dispute but rather clarified the approach that should be taken in determining the joint venture's profits. The court's orders did not include a final determination but mandated a reconsideration of the evidence and methodology in light of the court's guidance.

Orders