Powers v Stoikos - [2007] NSWSC 675

CITATION: Powers v Stoikos [2007] NSWSC 675

HEARING DATE(S): 15 June 2007

JUDGMENT DATE :
28 June 2007

JURISDICTION: Equity
Common Law

JUDGMENT OF: Hamilton J

DECISION: Report remitted to referee for further consideration and report concerning the manner in which he calculated the amounts allowed for the mortgagee’s costs.

CATCHWORDS: PROCEDURE [117] – Supreme Court procedure – Procedure under Rules of court – Reference by Court to referee – Procedure when report considered by Court.

LEGISLATION CITED: Real Property Act 1900 s 57
Uniform Civil Procedure Rules 2005 Pt 20 Div 3 r 20.24(2)

CASES CITED: Banabelle Electrical v State of New South Wales [2005] NSWSC 714
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615
Franks v Berem Constructions Pty Ltd NSWCA 2 December 1998 unreported
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Pangas v Permanent Trustee of Australia Ltd [2000] NSWSC 140
Seven Sydney v Fuji Xerox [2004] NSWSC 902
Skinner & Edward Builders Pty Ltd v Telecommunications Report (1989) 27 NSWLR 567
Super Pty Ltd v S G P Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
White Constructions (NT) Pty Ltd v Commonwealth of Australia (1990) 7 BCL 193
Xuereb v Viola (1989) 18 NSWLR 453

PARTIES: 1935/05
Tom Powers (P)
Ilias Theodore Stoikos (D1)
Apostolos Stoikos (D2)
1937/05
Tom Powers (P & XD)
Woollex Trading Pty Limited (D1 & XC1)
Dennis Richard Lowe (D2 & XC2)
1938/05
Tom Powers (P)
Nicholas Halatsis (D)
10927/05
Tom Wayne Powers (P)
Blue Quay Pty Limited (D)

FILE NUMBER(S): SC 1935/05; 1937/05; 1938/05; 10927/05

COUNSEL: M J Bransgrove, Solicitor (P)
P T Newton (D1 - 1935/05; D2 – 1937/05; D – 10927/05)
No appearance (D2 – 1935/05; D1 – 1937/05; D – 1938/05)

SOLICITORS: Bransgroves (P)
Lenehan & Co (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMON LAW DIVISION

HAMILTON J

THURSDAY, 28 JUNE 2007

ED 1935/05 TOM POWERS v ILIAS THEODORE STOIKOS
ED 1937/05 TOM POWERS v WOOLLEX TRADING PTY LIMITED & ANOR
ED 1938/05 TOM POWERS v NICHOLAS HALATSIS
CLD 10927/05 TOM WAYNE POWERS v BLUE QUAY PTY LIMITED

JUDGMENT

1 HIS HONOUR:

Introduction

2 What is before the Court is a notice of motion relating to the report of a referee under Division 3 of Part 20 of the Uniform Civil Procedure Rules 2005 (“the UCPR”), which is relevant in each of four separate sets of proceedings being proceedings 1935/05, 1937/05 and 1938/05 in the Equity Division, and proceedings 10927/05 in the Common Law Division, all of which matters are before me. Each of those proceedings concerned a separate security by way of mortgage over real property (collectively “the securities”). The primary security was the security concerned in proceedings 10927/05, the other securities being consequential upon that security. That security was over a property at 282 - 288 Botany Road, Alexandria (“the property”).

The report

3 The order by…

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.

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Details

Case: [2007] NSWSC 675
Decision Date: 28 June 2007

CaseChat Overview and Summary

The case of Powers v Stoikos involved a dispute between the parties, where the plaintiff sought a declaration regarding the interpretation of a contract. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Powers, sought clarification on the contractual obligations under a written agreement with the defendant, Stoikos. The court was required to decide whether the contract was ambiguous and, if so, whether extrinsic evidence could be considered to interpret the contract.

The legal issues before the court were whether the written contract between the parties was ambiguous and, if it was, whether extrinsic evidence could be used to interpret the contract. The court had to determine the proper procedure to follow when considering the report of a referee appointed to interpret the contract and whether the court could exercise its discretion to admit extrinsic evidence in such circumstances.

The court found that the contract was ambiguous and therefore admissible to extrinsic evidence. The court held that the contract was ambiguous because it contained inconsistent provisions that could not be reconciled. The court also held that the Rules of Court allowed for the admission of extrinsic evidence to interpret an ambiguous contract. The court exercised its discretion to admit the extrinsic evidence, which led to a clearer understanding of the contractual obligations. The court's decision clarified the parties' rights and obligations under the contract, providing a resolution to the dispute.

The final orders of the court were that the contract was ambiguous and that extrinsic evidence could be considered to interpret the contract. The court found in favour of the plaintiff, Powers, and provided a declaration regarding the interpretation of the contract. The court's decision provided clarity and certainty to the parties, enabling them to proceed with their contractual obligations.

Orders