Re Adaz Nominees Pty Ltd (No 6) - [2019] VSC 14

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS’ LIST
S ECI 2015 00385

ADAZ NOMINEES PTY LTD (ACN 006 228 119) as trustee for The Rado No 2 Trust and others according to the Schedule Plaintiffs

v

CASTLEWAY PTY LTD (ACN 131 870 481) as trustee for The Castleway Trust and another according to the Schedule Defendants

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JUDGE:

ROBSON J

WHERE HELD:

Melbourne

DATE OF HEARING:

11 December 2018

DATE OF JUDGMENT:

31 January 2019

CASE MAY BE CITED AS:

Re Adaz Nominees Pty Ltd (No 6)

MEDIUM NEUTRAL CITATION:

[2019] VSC 14

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INTEREST – Whether s 60(1) of the Supreme Court Act1986 enlivened – Claim sought declarations as to amount payable under an agreement for the sharing of profits from the conduct of a property-development business – No order was sought for the payment of moneys – The claim for damages was not made out – No interest awarded.
COSTS – Many issues litigated – Plaintiff successful on initial claim – Defendant found to be entitled to a significant sum more than that conceded by the plaintiff – Order that each party pay their own costs.
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APPEARANCES:
Counsel Solicitors

For the Plaintiffs Mr R M Garratt QC,
with Ms F R Cameron Maddocks

For the Defendants Mr G H Golvan QC,
with Mr B G Mason Kyriacou Lawyers
TABLE OF CONTENTS
Introduction.......................................................................................................................... 1
Should the Court make separate declarations?.............................................................. 3
Interest................................................................................................................................... 4
Was s 60(1) of the Supreme Court Act engaged?............................................................ 5
Was a claim for money made in the proceeding?........................................................ 11
Service fee for the 2016–2017 financial year................................................................... 13
Costs.................................................................................................................................... 13
Orders.................................................................................................................................. 15
Annexure “A”..................................................................................................................... 23
Annexure “B”..................................................................................................................... 24
Annexure “C”..................................................................................................................... 25
SCHEDULE OF PARTIES................................................................................................. 26

HIS HONOUR:

Introduction

The background to the dispute between the parties has been set out in Re Adaz Nominees Pty Ltd (No 2).[1] It is sufficient to say that the plaintiffs (whom I call the ‘TPC Group’)[2] and the defendants (whom I call ‘Castleway’)[3] entered into a profit-sharing agreement which they called the Property Development Services Agreement (‘PDSA’). Under the PDSA, Castleway was to manage and conduct the property-development business of the TPC Group in return, inter alia, for receiving 40 per cent of the profit of the business as calculated under the PDSA.
[1] [2017] VSC 578 (‘Re Adaz (No 2)’). Other relevant judgments are Re Adaz Nominees Pty Ltd (Ruling No 1) [2017] VSC 517; Re Adaz Nominees Pty Ltd (No 3) [2017] VSC 717; Re Adaz Nominees Pty Ltd (No 4) 2017 VSC 755; and Re Adaz Nominees Pty Ltd (No 5) [2018] VSC 624 (‘Re Adaz (No 5)’).
[2] Adaz Nominees Pty Ltd (‘Adaz’) is the firstnamed plaintiff of 10 plaintiffs, all controlled by Mrs Agnes Rado, the widow of Rinaldo Rado.
[3] The two defendants are Castleway Pty Ltd as trustee for The Castleway Trust and Gerard Damian Keeghan, the controller of Castleway Pty Ltd. In this judgment,…

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: [2019] VSC 14
Decision Date: 31 January 2019

CaseChat Overview and Summary

In the case of Re Adaz Nominees Pty Ltd (No 6), the plaintiff sought declarations regarding the amount payable under an agreement for profit-sharing from a property development business. The defendant was found to owe a significant sum more than initially conceded by the plaintiff. The court was tasked with determining whether section 60(1) of the Supreme Court Act 1986 was applicable and if so, whether interest should be awarded on the sum found owing. Additionally, the court had to consider the costs incurred by both parties during the litigation.

The court held that section 60(1) did not apply as the plaintiff did not seek an order for payment of moneys. The court found the claim for damages was not substantiated. Consequently, no interest was awarded on the sum found owing. Regarding costs, the court determined that there were numerous issues litigated and both parties had varying degrees of success. The plaintiff succeeded on the initial claim, but the defendant was entitled to a substantial sum more than that initially conceded by the plaintiff. Therefore, the court ordered that each party bear their own costs.

This decision highlights the importance of understanding the specific relief sought in a claim and its implications on the application of statutory provisions. The court’s reasoning underscores the necessity for clarity in pleadings to avoid misunderstandings about the scope of the claim and the potential consequences, such as the awarding of interest. The outcome also serves as a reminder of the court's discretion in determining costs, particularly in cases where multiple issues are litigated and outcomes are mixed.

Orders