SAS Realty Developments Pty Ltd v Kerr

Case [2013] NSWCA 56

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
Hearing dates:15 February 2013
Decision date: 19 March 2013
Before: Macfarlan JA (at [1])
Ward JA (at [2])
Sackar J (at [131])
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - adequacy of reasons for adverse credit findings - whether findings of fact affected by adverse credit findings

CONTRACT - whether good consideration established for variation of contract - whether alleged consideration was past consideration - capacity in which signatory entered into agreement relied upon as variation of joint venture agreement

EQUITY - unjust enrichment - restitution - whether bank withdrawals authorised - whether, if not for purposes of joint venture, retention amounted to unjust enrichment

PRACTICE AND PROCEDURE - civil - pleadings - adequacy of pleadings - alleged failure to plead consideration in contract claim
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 286 ALR 501
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
CEVA Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46
Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1988) 21 NSWLR 160
CSR Ltd v Della Maddalena [2005] HCA 30; (2005) 224 CLR 1
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Eastwood v Kenyon (1840) 11 Ad & El 438; 113 ER 482
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Foakes v Beer [1884] 9 AC 605
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 197; (2006) 66 NSWLR 186
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; (2008) 73 NSWLR 653
Liquor National Wholesale Pty Limited v The Redrock Pty Limited [2007] NSWSC 392
Mifsud v Campbell (1991) 21 NSWLR 725
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
National Commercial Banking Corporation of Australia Limited v Cheung (1983) 1 ACLC 1326
NEC Information Systems Australia Pty Limited v Linton (Wood J, 17 April 1985, unreported)
Nominal Defendant v McLennan [2012] NSWCA 148
Penny v Porter (1801) 2 East 2
Pinnel's Case (1602) 5 Co Rep 117; 77 ER 237
Roscorla v Thomas (1842) 3 QB 234; 114 ER 496
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AGLC
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
Case
[2013] NSWCA 56
Decision Date

CaseChat Overview and Summary

SAS Realty Developments Pty Ltd (SAS) appealed to the New South Wales Court of Appeal against findings made by the primary judge in proceedings brought by Mr Kerr. The dispute concerned a joint venture agreement, with Mr Kerr alleging that SAS had breached the agreement and had been unjustly enriched by certain unauthorised bank withdrawals. SAS sought to set aside or vary the primary judge's orders.

The Court of Appeal was required to determine several key legal issues. These included whether the primary judge's reasons for making adverse credit findings against SAS were adequate, and if those findings affected the overall findings of fact. The Court also considered whether good consideration was established for an alleged variation of the joint venture agreement, specifically whether the consideration relied upon was past consideration and whether the signatory had the relevant capacity. Furthermore, the Court examined whether SAS had been unjustly enriched by bank withdrawals that were allegedly not for the purposes of the joint venture, and whether the pleadings adequately pleaded consideration in the contract claim.

In its reasoning, the Court of Appeal found that the primary judge's reasons for the adverse credit findings were sufficient and that these findings did not vitiate the overall findings of fact. Regarding the alleged variation of the joint venture agreement, the Court determined that the consideration provided was not past consideration and that the signatory possessed the necessary capacity. The Court also concluded that the bank withdrawals did not amount to unjust enrichment, as they were either authorised or the circumstances did not give rise to a claim in restitution. The adequacy of the pleadings was also considered and found to be sufficient.

The appeal was dismissed, and SAS was ordered to pay Mr Kerr's costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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