Scald Pty Ltd v Turner Developments Pty Ltd - [2015] ACTSC 270

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 Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] QD R 82 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…

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 Scald Pty Ltd v Turner Developments Pty Ltd

Details

AGLC: Scald Pty Ltd v Turner Developments Pty Ltd [2015] ACTSC 270
Case: [2015] ACTSC 270
Decision Date: 5 November 2015

CaseChat Overview and Summary

Scald Pty Ltd brought an application against Turner Developments Pty Ltd seeking an account of profits and damages for alleged breaches of contract and fiduciary duty. The dispute arose out of a development agreement between the parties. The matter was heard in the Supreme Court of Victoria.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.