Puddick v Dyamond Developments Pty Ltd (No 3) - [2020] NSWSC 551

Supreme Court

New South Wales

Medium Neutral Citation: Puddick v Dyamond Developments Pty Ltd (No 3) [2020] NSWSC 551
Hearing dates: On the papers
Date of orders: 12 May 2020
Decision date: 12 May 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See par [62].

Catchwords:
CIVIL PROCEDURE — Discontinuance of proceedings — where the Court makes an order that the balance of the proceedings be discontinued as opposed to dismissed to allow for the continuing possibility of the claim being revived

EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts – where the Quistclose principle is not applied because the purpose has been satisfied
COSTS — Party/Party — Court’s discretion – where the circumstances dictate that it should be made clear that the defendants are liable to pay the plaintiffs’ costs on the ordinary basis – where the Court initially made an order in respect of proceedings that had not yet been completed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Elevate Brandpartners Ltd v Hammond (No 4) [2020] FCA 421
Dyamond Developments Pty Ltd v Puddick: [2020] NSWCA 32
Puddick v Dyamond Developments Pty Ltd [2019] NSWSC 431
Puddick v Dyamond Developments Pty Ltd (No 2) [2019] NSWSC 738
Category: Costs
Parties: Justin Frank Puddick (first plaintiff)
John Edward Puddick (second plaintiff)
Dyamond Developments Pty Ltd (first defendant)
George Hatzipapas (second defendant)
Gaks Investment Holdings Pty Ltd (third defendant)
Representation:
Counsel: E Peden SC (first and second plaintiffs)
JT Johnson (second and third defendants)
Solicitors: O’Loughlin Westhoff (first and second plaintiffs)
Tomaras Lawyers (second and third defendants)

File Number(s): 2018 / 185865

Judgment

The Court published its primary judgment in these proceedings on 18 April 2019: Puddick v Dyamond Developments Pty Ltd [2019] NSWSC 431.
The Court published a second judgment in this matter on 19 June 2019: Puddick v Dyamond Developments Pty Ltd (No 2) [2019] NSWSC 738.
On 18 April 2019, when the first judgment was delivered, the Court stated that it would hear the parties on the terms of any appropriate orders to give effect to the reasons for judgment, and to make provision for the further conduct of the proceedings.
In part, that announcement was made because of the proposal by the plaintiffs to pursue a tracing remedy against the third defendant.
On 24 May 2019, the Court ordered that judgment be entered in favour of each plaintiff against the first and second defendants in the amount of $104,909.
The Court also made orders that freezing orders made by Pembroke J on 15 June 2018 against the first defendant, and by Slattery J on 17 December 2018 against the second and third defendants, be extended until the two judgment debts were satisfied in full.
On 13 June 2019, the Court stood the proceedings over until 11 July 2019 before the Registrar, for the purpose of making case management orders relating to the tracing of funds paid by the plaintiffs…

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 Puddick v Dyamond Developments Pty Ltd (No 3)

Details

AGLC: Puddick v Dyamond Developments Pty Ltd (No 3) [2020] NSWSC 551
Case: [2020] NSWSC 551
Decision Date: 12 May 2020

CaseChat Overview and Summary

The case involved the plaintiffs, Puddick, seeking a declaration that certain properties were held on trust for them and an account of profits. The defendants were Dyamond Developments Pty Ltd, who were alleged to be holding the properties on trust. The matter was before the court to address the issue of the discontinuance of the proceedings, the application of Quistclose trusts, and the allocation of costs. The court was tasked with determining whether the proceedings should be discontinued or dismissed, the applicability of the Quistclose trust principle in this context, and the allocation of costs between the parties. The court concluded that the balance of the proceedings should be discontinued rather than dismissed, allowing for the possibility of the claim being revived in the future. The court found that the purpose of the Quistclose trust had been satisfied, thus the principle did not apply. Regarding costs, the court exercised its discretion and ordered that the defendants were liable to pay the plaintiffs' costs on the ordinary basis, clarifying that this was to be done in relation to the proceedings that had already been completed. The court's decision was informed by the specific circumstances of the case, including the nature of the claims, the stage of the proceedings, and the conduct of the parties.

Orders