UAERJ Pty Ltd v Jupiters Ltd - [2014] NSWCA 213

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: UAERJ Pty Ltd v Jupiters Ltd [2014] NSWCA 213
Hearing dates: 6 May 2014
Decision date: 03 July 2014
Before: Beazley P at [1];
McColl JA at [2];
Macfarlan JA at [3]
Decision:
(1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Set aside the following orders made on 23 October 2013:
(a) Order 1 made in proceedings 2013/131366;
(b) Orders 1, 2 and 5 made in proceedings 2013/164924.
(4) Judgment for the first, second, fifth, sixth and seventh defendants on Jupiters Ltd's claims against them in proceedings 2013/164924.
(5) Order Jupiters Ltd to pay the costs of those defendants at first instance and of the appeal and cross-appeal.
(6) Grant Jupiters Ltd a certificate under the Suitors' Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: EQUITY - assignment or charge of property - appellant engaged agent to organise tour by musical group The Jacksons - agent gave concert venues irrevocable directions to pay part of ticket sale proceeds to the respondent to discharge personal debt - whether agent had authority to deal with ticket sale proceeds on behalf of appellant - whether appellant precluded from withdrawing irrevocable directions to pay - election - whether appellant's conduct in earlier District Court action precluded it from bringing the present proceedings - whether appellant had alternative or cumulative remedies
Legislation Cited: Conveyancing Act 1919 (NSW), s 12
Property Law Act 1969 (WA), ss 11, 20
Uniform Civil Procedure Rules 2005 (NSW), r 14.26
Cases Cited: Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226
Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Petersen v Moloney [1951] HCA 57; 84 CLR 91
Tang Man Sit v Capacious Investments Ltd [1996] AC 514
United Australia Ltd v Barclays Bank Ltd [1941] AC 1
Category: Principal judgment
Parties: UAERJ Pty Ltd (Appellant/First
Cross-Respondent)
Ruchitha Perera (Second Appellant/Second Cross-Respondent)
Jupiters Ltd (Respondent/Cross-Appellant)
UAE Presents Pty Ltd (Third
Cross-Respondent)
John Denison (Fourth Cross-Respondent)
Brisbane City Council (Fifth
Cross-Respondent)
State of New South Wales (Sixth
Cross-Respondent)
AEG Ogden (Perth Arena) Pty Ltd (Seventh Cross-Respondent)
Representation: Counsel:
T J Morahan (Appellants/First and Second Cross-Respondents)
K Dawson/J Curtin (Respondent/
Cross-Appellant)
Submitting Appearance (Sixth
Cross-Respondent)
Solicitors:
Emprise Legal (Appellants/First and Second Cross-Respondents)
King & Wood Mallesons (Respondent/Cross-Appellant)
UAE Presents Pty Ltd (Third
Cross-Respondent)
John Denison (Fourth Cross-Respondent)
Brisbane City Legal Practice (Fifth
Cross-Respondent)
NSW Crown Solicitor's Office (Sixth
Cross-Respondent)
Clayton…

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.

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Details

Case: [2014] NSWCA 213
Decision Date: 03 July 2014

CaseChat Overview and Summary

In the case of UAERJ Pty Ltd v Jupiters Ltd, the appellant engaged an agent to organise a tour by the musical group The Jacksons. The agent subsequently provided irrevocable directions to the concert venues to pay a portion of the ticket sale proceeds to the respondent to discharge a personal debt owed by the agent. The appellant sought to challenge the validity of these directions and the respondent's entitlement to the funds. The appeal was heard by Beazley P, McColl and Macfarlan JJA.

The central legal issues before the court were whether the agent had the authority to deal with the ticket sale proceeds on behalf of the appellant, whether the appellant was precluded from withdrawing the irrevocable directions it had given, and whether the appellant's conduct in an earlier District Court action amounted to an election that precluded it from bringing the present proceedings. The court also considered whether the appellant possessed alternative or cumulative remedies.

The Court of Appeal allowed the appeal, finding that the agent lacked the authority to assign or charge the appellant's property, specifically the ticket sale proceeds. The court reasoned that the directions given by the agent to the venues did not constitute a valid assignment or charge of the appellant's property, as they were an attempt to discharge the agent's personal debt using funds that belonged to the appellant. Furthermore, the court determined that the appellant had not made an election in the earlier District Court proceedings that would prevent it from pursuing its claims in the present action.

Consequently, the appeal was allowed, and the cross-appeal was dismissed. The orders made by the lower court were set aside, and judgment was entered for the first, second, fifth, sixth, and seventh defendants on Jupiters Ltd's claims against them. Jupiters Ltd was ordered to pay the costs of those defendants at first instance and of the appeal and cross-appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Cross-appeal dismissed.

(3) Set aside the following orders made on 23 October 2013:

(a) Order 1 made in proceedings 2013/131366;

(b) Orders 1, 2 and 5 made in proceedings 2013/164924.

(4) Judgment for the first, second, fifth, sixth and seventh defendants on Jupiters Ltd's claims against them in proceedings 2013/164924.

(5) Order Jupiters Ltd to pay the costs of those defendants at first instance and of the appeal and cross-appeal.

(6) Grant Jupiters Ltd a certificate under the Suitors' Fund Act 1951, if qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	UAERJ Pty Ltd v Jupiters Ltd [2014] NSWCA 213
Hearing dates:	6 May 2014
Decision date:	03 July 2014
Before:	Beazley P at [1]; McColl JA at [2]; Macfarlan JA at [3]
Decision:	(1) Appeal allowed. (2) Cross-appeal dismissed. (3) Set aside the following orders made on 23 October 2013: (a) Order 1 made in proceedings 2013/131366; (b) Orders 1, 2 and 5 made in proceedings 2013/164924. (4) Judgment for the first, second, fifth, sixth and seventh defendants on Jupiters Ltd's claims against them in proceedings 2013/164924. (5) Order Jupiters Ltd to pay the costs of those defendants at first instance and of the appeal and cross-appeal. (6) Grant Jupiters Ltd a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	EQUITY - assignment or charge of property - appellant engaged agent to organise tour by musical group The Jacksons - agent gave concert venues irrevocable directions to pay part of ticket sale proceeds to the respondent to discharge personal debt - whether agent had authority to deal with ticket sale proceeds on behalf of appellant - whether appellant precluded from withdrawing irrevocable directions to pay - election - whether appellant's conduct in earlier District Court action precluded it from bringing the present proceedings - whether appellant had alternative or cumulative remedies
Legislation Cited:	Conveyancing Act 1919 (NSW), s 12 Property Law Act 1969 (WA), ss 11, 20 Uniform Civil Procedure Rules 2005 (NSW), r 14.26
Cases Cited:	Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Petersen v Moloney [1951] HCA 57; 84 CLR 91 Tang Man Sit v Capacious Investments Ltd [1996] AC 514 United Australia Ltd v Barclays Bank Ltd [1941] AC 1
Category:	Principal judgment
Parties:	UAERJ Pty Ltd (Appellant/First Cross-Respondent) Ruchitha Perera (Second Appellant/Second Cross-Respondent) Jupiters Ltd (Respondent/Cross-Appellant) UAE Presents Pty Ltd (Third Cross-Respondent) John Denison (Fourth Cross-Respondent) Brisbane City Council (Fifth Cross-Respondent) State of New South Wales (Sixth Cross-Respondent) AEG Ogden (Perth Arena) Pty Ltd (Seventh Cross-Respondent)
Representation:	Counsel: T J Morahan (Appellants/First and Second Cross-Respondents) K Dawson/J Curtin (Respondent/ Cross-Appellant) Submitting Appearance (Sixth Cross-Respondent) Solicitors: Emprise Legal (Appellants/First and Second Cross-Respondents) King & Wood Mallesons (Respondent/Cross-Appellant) UAE Presents Pty Ltd (Third Cross-Respondent) John Denison (Fourth Cross-Respondent) Brisbane City Legal Practice (Fifth Cross-Respondent) NSW Crown Solicitor's Office (Sixth Cross-Respondent) Clayton…