Saloma Pty Ltd v Big Country Developments Pty Ltd

[2006] NSWSC 652

CITATION:	Saloma Pty Ltd v Big Country Developments Pty Ltd [2006] NSWSC 652
HEARING DATE(S):	12/5/06
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	05/12/2006
DECISION:	That the determination of the sale price of plant and articles be referred to Mr Gower.
CATCHWORDS:	EQUITY [2]- Where parties have agreed on a procedure for valuing their interest and that procedure breaks down equity will supply the machines- How valuer might be appointed.
CASES CITED:	Hall v Busst (1960) 104 CLR 206 Milnes v Gery (1807) 14 Ves Jun 400; 33 ER 574
PARTIES:	Saloma Pty Limited (P) Big Country Developments Pty Limited (D)
FILE NUMBER(S):	SC 6246/05
COUNSEL:	N Obrart (P) G A Sirtes (D)
SOLICITORS:	Joe Ryan (P) Denes Ebner (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 12 May 2006

6246/05 – SALOMA PTY LTD v BIG COUNTRY DEVELOPMENTS PTY LTD

JUDGMENT

1 HIS HONOUR: This dispute concerns the aftermath of a lease of the Ruse Village Tavern. The parties entered into a ten year lease which expired on 14 July 2004 and the plaintiff vacated the premises upon termination of the lease. The defendant sent a notification to the plaintiff pursuant to cl 6.12.5 of the lease to purchase the plant and equipment used by the plaintiff in the business. The parties were not able to reach agreement on the price and the matter was referred to a Mr Roufeil, an accountant, to determine the price. That process broke down.

2 The plaintiff has issued a summons for a declaration that the defendant has wrongly converted to its use the plaintiff’s plant and equipment, and damages for conversion. I am flattered this is brought in the Equity Division because it is a purely common law claim.

3 The defendant has countered and filed a cross-claim for a declaration that it was the implied term of the lease that the plaintiff would cooperate in the machinery and has failed to do so and it should be ordered to perform its obligations or to pay equitable compensation.

4 When the matter came into the list a few weeks ago for expedition, it seemed to me that the whole dispute was one which did not arise. The authorities in cases such as Hall v Busst (1960) 104 CLR 206 which go back to the judgment of Sir William Grant in Milnes v Gery (1807) 14 Ves Jun 400; 33 ER 574, indicate that when one gets a situation such as the present, equity uses its powers to supply the machinery that has broken down. Accordingly, neither the plaintiff nor the defendant is likely to succeed in the suit and what should happen, is that some person should be appointed to carry out the exercise that failed under Mr Roufeil and if anyone misbehaves in that process then the court, having appointed someone to do the job, will make sure that the job is completed satisfactorily and properly.

5 The parties appear to have agreed to that course and were asked to nominate a person to carry out the task. Each nominated three and neither would agree with the other. Today it has come down to two. The plaintiff puts up Mr McGee and the defendant puts up Mr Gower. It would seem from all the material I have that the real objection to the other’s nominee is merely the fact that that person was nominated by the other party to the litigation rather than any inherent problem with their capacity. Neither has been involved with the parties or their solicitors before, save that a partner of Mr McGee has been, in a peripheral way, involved with the plaintiff’s solicitors. I have a CV from Mr Gower. I do not have one from Mr McGee. It is very little material on which to make a decision but in my view there is more material in favour of Mr Gower than Mr McGee and I appoint him.

6 I make orders in accordance with the short minutes, crossing out number 5, and I give the parties liberty to apply generally on three days’ notice.

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