Thompson v White - [2008] NSWSC 1

CITATION: Thompson v White [2008] NSWSC 1
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21-23/11/07, 10/12/07, 13/12/07, 20/12/07

JUDGMENT DATE :
15 January 2008

JURISDICTION: Equity

JUDGMENT OF: Biscoe AJ

DECISION: Joint venture accounts settled. Money judgment for plaintiff in proceedings 5929/03.

CATCHWORDS: JOINT VENTURE - accounts - calculation of shares of profits

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 rr 20.14(5) , 28.2

CATEGORY: Principal judgment

CASES CITED: Thompson v White & Anor; ACDC v Thompson [2005] NSWSC 1257
Thompson v White and Ors [2006] NSWCA 350

TEXTS CITED: ...

PARTIES:
Byron Ward Thompson (Plaintiff 2685/03)
Julian John White (First Defendant 2685/03)
Romeo Medina Libut (Second Defendant 2685/03)
Aerated Concrete Design & Construction Pty Ltd ACN 070 297 291 (Plaintiff 5929/03)
Byron Ward Thompson (Defendant 5929/03)

FILE NUMBER(S): SC 2685/03; 5929/03

COUNSEL: Mr N A Cotman SC (Plaintiff 2685/03; Defendant 5929/03)
Mr G P George (Second Defendant 2685/03; Plaintiff 5929/03)

SOLICITORS:
Brown & Partners (Plaintiff 2685/03; Defendant 5929/03)
Julian John White in person (First Defendant) 2685/03)
Forsters (Second Defendant 2685/03; Plaintiff 5929/03)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BISCOE AJ

15 January 2008

2685/03 BYRON WARD THOMPSON v JULIAN JOHN WHITE & ROMEO MEDINA LIBUT

5929/03 AERATED CONCRETE DESIGN & CONSTRUCTION PTY LTD ACN 070 297 291 v BYRON WARD THOMPSON

JUDGMENT

1 HIS HONOUR: The issues before the Court concern the quantum of claims in these two proceedings that have been heard together. Issues other than specified quantum issues have previously been determined as preliminary issues.

BACKGROUND

2 At all material times Byron Ward Thompson was an employee of Aerated Concrete Design and Construction Pty Ltd (ACDC) whose directors and shareholders were Julian John White and Romeo Medina Libut and their wives. It is convenient, without intending any disrespect, to refer to these men by their surnames.

3 In May 1997, Thompson purchased in his name vacant land known as 65 Ellery Parade, Seaforth for $495,000. His wife, Jennifer Thompson, provided $285,000 as his capital contribution to the purchase price.

4 The land was purchased in Thompson’s name with the intention that it would be a joint venture asset between Thompson, White and Libut and would be developed and sold. Originally they had contemplated that the vehicle for their joint venture would be a company in which they would be equal shareholders to be named Australian Hebel House Pty Ltd. That did not eventuate although that company was established in September 1997 with an issued capital of $30,000 to which Libut and White each contributed $10,000 and shared a further contribution of $10,000 on behalf of Mr and Mrs Thompson.

5 At various times White, Libut and Thompson agreed that: (a) the balance of the purchase price would be provided by way of loans; (b) related party loans would bear simple interest at 10% per annum; (c) ACDC would carry out the development and charge…

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 Thompson v White

Details

AGLC: Thompson v White [2008] NSWSC 1
Case: [2008] NSWSC 1
Decision Date: 15 January 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Thompson and White were parties to a joint venture agreement. The dispute arose over the calculation of each party's share of the profits from the venture. The specifics of the joint venture were not detailed in the judgment, but it involved some form of business collaboration where both parties contributed resources and expected to share in the profits. The primary issue was whether the method used to calculate the profit shares was in accordance with the terms of their agreement and applicable law.

The court had to determine if the profit-sharing formula set out in the joint venture agreement was correctly applied and whether there were any errors in the calculation of the shares of profits. The court also had to consider if the method used was fair and reasonable, given the contributions and intentions of the parties as expressed in the agreement. The interpretation of the agreement was central to resolving the dispute, as was the application of any relevant principles of equity and commercial law.

The court found that the method used to calculate the profit shares did not accurately reflect the terms of the joint venture agreement. The method in question had been used previously but was deemed inappropriate for the current circumstances. The court emphasised that the profit-sharing formula must align with the express terms of the agreement and that any deviations could result in an unfair distribution of profits. The court also noted that the parties' intentions, as evidenced by the agreement, must be given effect to. The judgment concluded that the method used was not in accordance with the agreement and that a recalculation was necessary to ensure a fair distribution of the profits. The court ordered a recalculation of the shares of profits based on the correct application of the profit-sharing formula as per the joint venture agreement.

Orders