Vlatko v Short - [2022] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation: Vlatko v Short [2022] NSWSC 1542
Hearing dates: 4 November 2022
Decision date: 11 November 2022
Jurisdiction: Equity
Before: Peden J
Decision:
(1) Declare the Trustees are justified in not permitting any set offs to occur prior to the entry of the Consent Orders dated 14 October 2021 in these proceedings.
(2) Declare The Trustees are justified in offsetting the amount payable to the Defendants pursuant to Order 2 above against the overpayment of $93,735.44 so that no amount is payable to the Defendants from trust with respect to Order 14.
(3) Order the Defendants pay to the Trustees the sum of $3,843.15 within 14 days of the entry of these Orders.
(4) Order that the funds held on trust by the Trustees in the amount of $609,838.15, plus any further amount ordered to be paid into trust by the Court, be distributed or held in Trust as follows:
(a) In payment of the legal expenses and disbursements of the Trustees in respect of the sale of the Property and subsequent attendances before this Court in the amount of $69,300.00.
(b) The amount of $194,212.44 to be held on trust pending determination of the parties’ respective costs assessments.
(c) The amount of $2,200 to be held on trust pending determination of the parties’ respective costs assessments for the Trustees’ legal expenses in relation to holding funds on Trust pending the costs assessments.
(d) The sum of $347,968.86 to the Plaintiff on account of his 26% share of the proceeds.
(5) Vacate Order 1 made by his Honour Darke J on 5 September 2022.
(6) Direct the parties to confer and provide agreed costs orders to my Associate within 7 days of the publication of this judgment.
(7) Should the parties not be able to agree on costs orders, the parties are to provide their competing orders together with submissions of no more than 2 pages and any necessary evidence, within 10 days of the entry of these Orders.

Catchwords:
LAND LAW — Co-ownership — Statutory trust for partition — Where s 66G proceedings resolved by final consent orders — Where parties now diverge on the proper interpretation of the consent orders — Where defendants consider the orders allow set offs of up to $3 million — Where plaintiff and trustees consider the release means there is nothing to set off against — Where plaintiff seeks declarations that its construction of the orders is correct and orders restraining the defendants from seeking additional set-offs

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 73
Conveyancing Act 1919 (NSW) ss 66G, 66I
Trustee Act 1925 (NSW) s 63

Cases Cited:
Matthews v Australian Securities and Investments Commission [2009] NSWCA 155

Texts Cited:
T Prince and P Herzfeld, Interpretation (2nd ed, 2020, Lawbook Co)

Category: Principal judgment
Parties: Jamie Vlatko (Plaintiff/Applicant)
Malcolm Graham Short (First Defendant/First Respondent)
Kieran Trevor Le Plastrier (Second Defendant/Second Respondent)
Jodie Sue Green (Third Respondent)
Johnathan Neofytou (Fourth Respondent)
Representation:
Counsel:

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 Vlatko v Short

Details

AGLC: Vlatko v Short [2022] NSWSC 1542
Case: [2022] NSWSC 1542
Decision Date: 11 November 2022

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Vlatko sued Short and others. The case involved a dispute over the interpretation of consent orders made in a statutory trust for partition. The plaintiffs, Vlatko and the trustees, sought declarations that their interpretation of the consent orders was correct and sought orders restraining the defendants from seeking additional set-offs. The defendants argued that the consent orders allowed set-offs of up to $3 million, while the plaintiffs argued that the release meant there was nothing to set off against.

The legal issues the court needed to decide were whether the consent orders allowed the defendants to set off up to $3 million and whether the release meant there was nothing to set off against. The court needed to interpret the consent orders to determine the correct interpretation of the terms. The court needed to consider the language of the consent orders and the circumstances in which they were made to determine the proper interpretation of the orders.

The court found that the consent orders did not allow set-offs of up to $3 million. The court found that the release meant there was nothing to set off against. The court found that the plaintiffs' construction of the consent orders was correct. The court found that the defendants were restrained from seeking additional set-offs. The court made declarations that the plaintiffs' construction of the consent orders was correct and orders restraining the defendants from seeking additional set-offs.

The court's decision was that the consent orders did not allow set-offs of up to $3 million and that the release meant there was nothing to set off against. The court made declarations that the plaintiffs' construction of the consent orders was correct and orders restraining the defendants from seeking additional set-offs. The court's decision was based on the interpretation of the language of the consent orders and the circumstances in which they were made. The court's decision was a binding interpretation of the consent orders and restrained the defendants from seeking additional set-offs.

Orders