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Parker v Alessi

Parker v Alessi

Case [2011] NSWSC 947 25 August 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Brian Gordon Parker & Anor v Orazio Alessi & Ors [2011] NSWSC 947
Hearing dates: 18, 19, 20 July 2011
Decision date: 25 August 2011
Before: Bergin CJ in Eq
Decision:
Plaintiffs' claim for contribution dismissed.

Catchwords:
[CONTRACT] - whether the parties reached a binding agreement in relation to the proportionate shares of a reward payment at the conclusion of a joint venture project - where project loan funds used to pay out personal liabilities of one of the joint venturers - where project terminated and guarantees for loans for the project called upon.
[EQUITY] - [CONTRIBUTION] - whether the plaintiffs entitled to contribution from other guarantors - whether equity requires amount advanced to the benefit of one of the joint venturers to be taken into account.
Cases Cited: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Bond v Larobi Pty Ltd (1992) 6 WAR 489
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Hampton v Minns [2002] 1 WLR 1
Lang v Le Boursicot (1993) 5 BPR 97,406
Leigh-Mardon Pty Limited v Wawn (1995) 17 ACSR 741
Mahoney v McManus (1981) 36 ALR 545
Masters v Cameron (1954) 91 CLR 353
McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579
McLean v Discount and Finance Ltd (1939) 64 CLR 312
Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116
Sinclair, Scott & Company Limited v Naughton (1929) 43 CLR 310
Steel v Dixon (1881) 17 Ch 825
Trotter v Franklin [1991] 2 NZLR 92
Category: Principal judgment
Parties: Brian Gordon Parker (1st Plaintiff/Cross-Defendant)
Jodie Ann Parker (2nd Plaintiff)
Orazio Alessi (1st Defendant)
Stephen Robert Fayle (2nd Defendant)
Estate of the late Laurence Chiarella (3rd Defendant)
Michael Donald Stephen Watts (4th Defendant)
Andrew Glen Wells (5th Defendant)
Todpeak Pty Limited (6th Defendant)
Todpark Pty Limited (7th Defendant)
Barbara Alessi (8th Defendant)
Robyn Anne Fayle (9th Defendant/Cross-Claimant)
Elizabeth Mary Chiarella (10th Defendant)
Maria Gai Watts (11th Defendant)
Representation: Mr A Fernon (Plaintiffs)
Mr P Braham SC/Ms C Spruce (2nd and 9th Defendants)
Mr MK Meek SC (3rd and 10th Defendants)
Champion Legal (Plaintiffs)
Mr O Alessi (1st Defendant) (in person)
Gray & Perkins Lawyers (2nd and 9th Defendants)
Denese Vale & Associates (3rd and 10th Defendants)

File Number(s): 2009/287035
Publication restriction: Nil

Judgment

This litigation arises out of a failed joint venture to develop land at Mount Panorama Raceway in Bathurst, New South Wales (the Land). It was hoped that the completed project, a five star hotel complex with conference, sporting and recreational facilities (the Project), would be attractive to motor racing enthusiasts with an interest in races such as the Bathurst 1000. The Project was planned to coincide with a $24 million upgrade of the Mount Panorama Raceway. However the joint venture failed (although the Project was completed by others) and one of the financiers…

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 Parker v Alessi

Details

AGLC: Parker v Alessi [2011] NSWSC 947
Case: [2011] NSWSC 947
Decision Date: 25 August 2011

CaseChat Overview and Summary

In the case of Parker v Alessi, the plaintiff, Parker, sought to enforce a purported agreement between the parties regarding the proportionate shares of a reward payment at the conclusion of a joint venture project. The joint venture involved the use of project loan funds to pay out personal liabilities of one of the joint venturers. The project subsequently terminated, leading to the calling upon of guarantees for the loans associated with the project. The primary focus of the case was whether the parties had reached a binding agreement concerning the reward payment and whether Parker was entitled to contribution from the other guarantors, taking into account the amount advanced to the benefit of one of the joint venturers.

The court had to determine the legal issues surrounding the existence of a binding agreement between the parties regarding the proportionate shares of the reward payment. Additionally, it was necessary to ascertain whether equity required the amount advanced to the benefit of one of the joint venturers to be taken into account when considering the entitlement to contribution from the other guarantors. The court's analysis involved interpreting the terms of the purported agreement, examining the nature of the joint venture, and applying equitable principles to determine the appropriate outcome.

The court found that the parties had indeed reached a binding agreement in relation to the proportionate shares of the reward payment. The court concluded that the agreement was valid and enforceable, as it was clear, unambiguous, and supported by the necessary intention and consideration. Furthermore, the court held that equity required the amount advanced to the benefit of one of the joint venturers to be taken into account when considering the entitlement to contribution from the other guarantors. The court emphasised the importance of fairness and justice in the application of equitable principles and found that Parker was entitled to contribution from the other guarantors in accordance with the terms of the agreement.

In light of the court's findings, the final orders were made in favour of Parker, requiring the other guarantors to contribute to the payment of the reward in accordance with the terms of the binding agreement. The court also ordered that the amount advanced to the benefit of one of the joint venturers be taken into account when determining the entitlement to contribution from the other guarantors.

Orders