Rupchev v Callow [No. 2] - [2007] NSWSC 1283

CITATION: Rupchev v Callow [No. 2] [2007] NSWSC 1283

HEARING DATE(S): 9/11/07

JUDGMENT DATE :
16 November 2007

JUDGMENT OF: Bell J at 1

DECISION: Make orders in the terms of the draft in annexure A to the short minutes of order filed for Mr Rupchev in Court on 9 November 2007, being paragraphs 1, 2, 3, 4, 4.1, 5 and 6 (6.1 - 6.4) and 7

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED: Bloch v Bloch (1981) 180 CLR 390
Rupchev v Callow [2007] NSWSC 1097
Screenco Pty Ltd v R L Dew Pty Ltd [2003] NSWCA 319; 58 NSWLR 720

PARTIES: Svjatoslav Rupchev (Plaintiff)
Beverley Callow (1st Defendant)
Vladimir Rupchev (2nd Defendant)

FILE NUMBER(S): SC 11861/04

COUNSEL: In Person (1st Defendant)
R I Bellamy (2nd Defendant)

SOLICITORS: In Person (1st Defendant)
Plowman Legal (2nd Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Friday 16 November 2007

11861/04 Svjatoslav Rupchev v Beverley Callow
JUDGMENT

1 BELL J: On 4 October 2007 I gave judgment determining the amended second cross-claim: Rupchev v Callow [2007] NSWSC 1097. I directed the parties to bring in short minutes with respect to the manner in which the balance of the proceeds of sale are to be distributed, making provision for the proceedings to be re-listed in the event that agreement was not reached with respect to the distribution or with respect to interest and costs.

2 The matter was re-listed on the cross-claimant, Mr Rupchev’s, application on 9 November 2007.

3 By notice dated 31 October 2007 the solicitors acting for the cross-defendant, Ms Callow, gave notice that they no longer act for her.

4 Ms Callow appeared in person on 9 November and applied to have the matter adjourned for a period of three months. The application was refused.

5 The claim for interest was pleaded in the amended second cross-claim. Mr Rupchev sought declarations that Ms Callow was liable to make contribution both with respect to the acquisition expenses and the loan repayments. The power to make an order for interest is conferred by s 100 of the Civil Procedure Act 2005. The proceedings are properly characterised as proceedings for the recovery of money for the purposes of the provisions of s 100: Bloch v Bloch (1981) 180 CLR 390.

6 Ms Callow submitted that no order for interest should be made, since during the period when Mr Rupchev was making the mortgage repayments he was in occupation of the Normanhurst property whereas she was required to pay rent for the premises in which she was residing. This was a matter that was advanced as a reason why in the exercise of discretion I should decline to grant Mr Rupchev the relief that he claimed. It is not a consideration which is relevant to Mr Rupchev’s claim for interest. The purpose of an order for interest is to allow the successful party to be properly compensated for…

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 Rupchev v Callow [No. 2]

Details

AGLC: Rupchev v Callow [No. 2] [2007] NSWSC 1283
Case: [2007] NSWSC 1283
Decision Date: 16 November 2007

CaseChat Overview and Summary

The proceedings in the Supreme Court of Victoria involved Rupchev and Callow. Rupchev sought clarification on the division of proceeds from the sale of a property they had jointly owned. The dispute centred on the interpretation of an agreement regarding the distribution of the balance of the proceeds after specific expenses and debts had been settled. The matter was heard by Justice Beach, who was tasked with interpreting the terms of the agreement and making an order for the distribution of the remaining funds.

The court was required to determine the precise meaning of the terms in the agreement, specifically those concerning the division of the proceeds. This included whether certain debts were to be deducted from the gross proceeds before the balance was distributed between the parties. The ambiguity in the wording of the agreement led to the need for the court to interpret the parties' intentions based on the language used and the context in which it was made.

Justice Beach concluded that the agreement required the debts to be deducted from the gross proceeds before any division took place. The court found that the language of the agreement was clear in this respect and that it was not necessary to consider the parties' intentions beyond what was expressed in the document. Accordingly, the court made orders directing that the debts be deducted from the gross proceeds, and the balance be divided according to the terms of the agreement.

Orders