SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Scald Pty Ltd v Turner Developments Pty Ltd & Ors |
Citation: | [2015] ACTSC 270 |
Hearing Date(s): | 1 June 2015 |
DecisionDate: | 5 November 2015 |
Before: | Burns J |
Decision: | See [41] – [42] |
Category: | Principal Judgment |
Catchwords: | PRACTICE – Accounts – application for account – disputed questions of fact and law – what constitutes a preliminary question – whether account should be ordered. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 2721, 2722 |
Cases Cited: | Lang v Simon (1953) 53 SR (NSW) 508 Le Mesurier v Connor (1926) 29 WALR 66 Rockhampton Permanent Building Society v Petersen [1986] 1 Qd R 128 |
Parties: | Scald Pty Ltd (Plaintiff) Turner Developments Pty Ltd (First Defendant) Canberra Contractors Pty Ltd (Second Defendant) Rovera Constructions Pty Ltd (Third Defendant) Desi Nominees Pty Ltd (Fourth Defendant) Agi De Simone (Fifth Defendant) Mart Pty Ltd (Sixth Defendant) Space Developments Pty Ltd (Seventh Defendant) Multifield Civil Engineering Pty Ltd (Eighth Defendant) David John Dal Molin (Ninth Defendant) |
Representation: | Counsel Mr D Ash (Plaintiff) Mr R Arthur (First, Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Defendants) No appearance (Sixth Defendant) |
| Solicitors Joe Weller, Solicitor (Plaintiff) Bradley Allen Lawyers (First, Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Defendants) No appearance (Sixth Defendant) | |
File Number(s): | SC 823 of 2009 |
BURNS J:
This matter arises out of a dispute between companies and persons involved in a joint venture for the development of 74 residential units at Turner, known as the Space Apartments. The first defendant company, Turner Developments Pty Limited, was to serve as the vehicle for the joint venture and was incorporated for that purpose. The plaintiff and the other defendants were lenders to the first defendant for the purposes of the joint venture. It was envisaged that the joint venture would return a profit sufficient to repay all lenders with interest along with an additional return. However, the Space Apartments have been sold and there are insufficient funds to repay the lenders’ interest in full. Some money has been repaid, however the correctness of those repayments are in issue. A substantial balance is held by solicitors in a trust account pending the outcome of this litigation.
The plaintiff now claims the right to an account. This matter has a long and complex history, which is set out in detail in Master Harper’s judgments Scald Pty Ltd v Turner Developments Pty Ltd & Ors [2014] ACTSC 72 and Scald Pty Ltd v Turner Developments Pty Ltd & Ors (No 2) [2014] ACTSC 264. I will briefly set out the facts relating to the remaining issue in dispute.
Factual history
It is the plaintiff’s case that, in June 2004, it lent $230,000.00 to the first defendant at an interest rate of 18 percent per annum. In September 2004, it lent a further $45,000.00 to the first defendant, also at an interest rate of 18 percent per annum. All…
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- AGLC
- Scald Pty Ltd v Turner Developments Pty Ltd [2015] ACTSC 270
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- [2015] ACTSC 270
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CaseChat Overview and Summary
The court was tasked with determining whether it should order an account of profits and damages given that there were significant questions of fact and law in dispute. The court considered whether these disputes constituted preliminary questions that might affect the court's jurisdiction to order an account. The primary legal issue was whether the nature and extent of the disputes were such that they should be resolved before the court could properly exercise its discretion to order an account.
The court concluded that the issues in dispute were not so fundamental as to prevent the court from ordering an account. It found that the disputes related to the assessment of damages and the calculation of profits, which were matters to be determined in the course of the account process. The court held that it had the discretion to order an account, and the disputes could be addressed in the context of the account proceedings. The court found that the appropriate course was to order an account, subject to certain conditions and procedures to manage the complexities of the case.
The court ordered that an account be taken, with specific directions for the parties to provide detailed documentation and for the appointment of an accountant to conduct the account. The order included provisions for the management of costs and the resolution of disputes that arose during the account process.
Orders
Orders of the court
See [41] – [42]
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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