Turner v Oates Properties Pty Ltd - [2004] NSWSC 732

CITATION: Turner v Oates Properties Pty Ltd [2004] NSWSC 732

HEARING DATE(S): 06/08/04

JUDGMENT DATE:
17 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Plaintiff to pay costs of both defendants

CATCHWORDS: PROCEDURE - costs - where no determination on the merits - claim that defaulting purchaser company subject to consent order for specific performance be punished for contempt - compliance before motion for contempt heard - immediate claim to remedy of last resort - no statement of charge as required by rules - no personal service - claim that director of defaulting company be punished for contempt - no order against director - contempt claim misconceived - claim for committal or sequestration against director - no personal service - both claims would have failed - conduct of plaintiff unreasonable so as to warrant adverse costs order

LEGISLATION CITED: Supreme Court Rules Part 1 rule 12, Part 52A rule 11, Part 55 rules 8, 9, Part 42 rules 6, 8, Part 9 rule 3

CASES CITED: ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875
Antoniadis v TCN Channel 9 Pty Ltd (unreported, NSWSC, Levine J, 5 December 1997)
Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758
Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 9460
Withal v Holloway (1995) 183 CLR 525

PARTIES :

Elizabeth Ann Turner - Plaintiff
Oates Properties Pty Limited - First Defendant
Cameron Donald-Oates - Second Defendant

FILE NUMBER(S): SC 2424/04

COUNSEL: Mr S T White - Plaintiff
Mr A J L Ogborne - Defendants

SOLICITORS: Freidman Reeves - Plaintiff
Davidsons Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 17 AUGUST 2004

2424/04 – ELIZABETH ANN TURNER v OATES PROPERTIES PTY LIMITED & ANOR

JUDGMENT

1 Before me for decision is the question of the costs orders that should be made in respect of a notice of motion filed by the plaintiff on 16 July 2004. The motion was dismissed by consent in circumstances to which I shall come. The only matter outstanding is costs.

2 The substantive proceeding was one in which the plaintiff, as vendor, sought as against the first defendant, as purchaser, an order for specific performance of a contract for the sale of land. That order was made by consent on 4 June 2004. It was ordered that the first defendant perform and carry into execution, within 28 days, a contract for the sale and purchase of a house property at 7 Victoria Street Paddington which the court declared to exist and to be binding. There had been a like claim for a declaration and order for specific performance against the second defendant. By the consent orders, that claim against the second defendant was dismissed.

3 The plaintiff, by the notice of motion filed on 16 July 2004, claimed an order that the first…

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 Turner v Oates Properties Pty Ltd

Details

AGLC: Turner v Oates Properties Pty Ltd [2004] NSWSC 732
Case: [2004] NSWSC 732
Decision Date: 17 August 2004

CaseChat Overview and Summary

In Turner v Oates Properties Pty Ltd, the dispute arose between the plaintiff, Turner, and the defendant, Oates Properties Pty Ltd, in relation to a property transaction that had gone awry. The case was heard in the Supreme Court of Victoria. Turner sought to enforce a specific performance order against Oates Properties, which had failed to complete a purchase. The court was tasked with deciding whether Turner's claims for contempt and adverse costs were justified.

The primary legal issues involved the procedural correctness of Turner's claims. Turner argued that Oates Properties should be held in contempt for defaulting on a consent order for specific performance. Turner also sought to hold the director of Oates Properties in contempt and to commit or sequestrate the director. The court needed to determine if Turner's claims were appropriately brought, given that they were made without personal service, and if the contempt claims were justified. Additionally, the court had to consider whether Turner's conduct warranted an adverse costs order.

The court found that Turner's claims for contempt and committal or sequestration were misconceived and would have failed. Turner's failure to personally serve the claims, as required by the rules, rendered them procedurally improper. The court also noted that Turner's conduct in pursuing these claims was unreasonable, leading to an order for Turner to pay Oates Properties' costs. The court declined to make any orders against the director of Oates Properties due to the lack of personal service and the misconceived nature of the claims.

In summary, the court dismissed Turner's claims for contempt and adverse costs against Oates Properties and its director. Turner's failure to comply with procedural requirements and the unreasonableness of the claims led to an order for Turner to pay Oates Properties' costs.

Orders