Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145 Hearing dates: 5 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Before: Meagher JA at [1];
Kirk JA at [2];
Griffiths AJA at [93]Decision: (1) Appeal allowed in part, with no order made as to the costs of the appeal.
(2) Set aside order 14 made by the Supreme Court on 6 September 2022 (dismissing the cross-claim) to the extent that the cross-claim relates to the claimed $590,000 loan from Mega-Top Cargo Pty Ltd to Nanevski Developments Pty Ltd, and in lieu thereof order judgment for Mega-Top Cargo Pty Ltd in the amount of $590,000 plus interest on that amount from 5 March 2019 calculated at the rates referred to in Practice Note SC Gen 16.
(3) Declare that the $302,500 further deposit paid towards the Vista Street property on 9 July 2015 was paid from the bank accounts of Mega-Top Cargo Pty Ltd as a contribution to the partnership by Ken Slaveski.
(4) Set aside the declaration in order 3(a) (relating to the entitlement to charge for consultancy work) made by the Supreme Court on 6 September 2022.
(5) Amend order 12 made by the Supreme Court on 6 September 2022 (relating to the taking of an account) such that at the end of the sentence the following words are added: “as varied by the Court of Appeal”.
(6) If either the appellants or the respondents seek an order relating to the costs of the proceedings below other than that proposed at [90] of this Court’s judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within seven days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days.
Catchwords: PARTNERSHIPS — Winding up — Accounts — Whether monies advanced were contributions made to the partnership then loaned to a partner, or a direct loan outside the partnership — Parties not manifesting legal sophistication — Application of Occam’s Razor
APPEALS — From finding of fact — Proof of undocumented payments of large sums of cash is fraught — Inherent unlikelihood of payment using very large sums in physical cash for a commercial transaction
APPEALS — From finding of fact — Contribution of a sum of $200,000 was documented — Does not matter whether the payments were made to assist in the purchase of one property or another, or made in cash or otherwise, where account is to be taken
CONTRACTS — Remedies — Declarations — Pleadings — Claimed contractual entitlement to consultancy fees not pleaded nor an issue fairly raised in the proceedings
Legislation Cited: Home Building Act 1989 (NSW), s 10
Partnership Act 1892 (NSW), s 24(1)
Cases Cited: Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820
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- AGLC
- Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145
- Case
- [2023] NSWCA 145
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether undocumented payments of large sums of cash could be proven as contributions or loans, and whether a claimed contractual entitlement to consultancy fees had been properly pleaded and raised in the proceedings. The court also had to consider the application of Occam's Razor in circumstances where the parties lacked significant legal sophistication.
The Court of Appeal reasoned that proving undocumented cash payments of large sums is inherently difficult and unlikely in a commercial context. While a $200,000 contribution was documented, the court found that the method of payment, whether cash or otherwise, and the specific property it was intended to assist with, were irrelevant for the purpose of taking an account. The claim for consultancy fees was dismissed as it had not been pleaded nor fairly raised as an issue. The court allowed the appeal in part, setting aside an order that dismissed a cross-claim and instead ordering judgment for Mega-Top Cargo Pty Ltd for $590,000 plus interest. It also declared that a further deposit of $302,500 was a partnership contribution from Ken Slaveski, and set aside a declaration relating to consultancy work.
Orders
Orders of the court
(1) Appeal allowed in part, with no order made as to the costs of the appeal.
(2) Set aside order 14 made by the Supreme Court on 6 September 2022 (dismissing the cross-claim) to the extent that the cross-claim relates to the claimed $590,000 loan from Mega-Top Cargo Pty Ltd to Nanevski Developments Pty Ltd, and in lieu thereof order judgment for Mega-Top Cargo Pty Ltd in the amount of $590,000 plus interest on that amount from 5 March 2019 calculated at the rates referred to in Practice Note SC Gen 16.
(3) Declare that the $302,500 further deposit paid towards the Vista Street property on 9 July 2015 was paid from the bank accounts of Mega-Top Cargo Pty Ltd as a contribution to the partnership by Ken Slaveski.
(4) Set aside the declaration in order 3(a) (relating to the entitlement to charge for consultancy work) made by the Supreme Court on 6 September 2022.
(5) Amend order 12 made by the Supreme Court on 6 September 2022 (relating to the taking of an account) such that at the end of the sentence the following words are added: “as varied by the Court of Appeal”.
(6) If either the appellants or the respondents seek an order relating to the costs of the proceedings below other than that proposed at [90] of this Court’s judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within seven days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days.
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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