Waller Projects Pty Ltd v FW Estate Pty Ltd - [2019] QSC 221

SUPREME COURT OF QUEENSLAND

CITATION:

Waller Projects Pty Ltd v FW Estate Pty Ltd & Ors [2019] QSC 221

PARTIES:

WALLER PROJECTS PTY LTD ACN 160 554 165

(Plaintiff)

v

FW ESTATE PTY LTD ACN 600 909 920

(First Defendant)

BREMHA PTY LTD ACN 133 642 458

(Second Defendant)

DG JIMBOOMBA DEVELOPMENTS PTY LTD ACN 609 512 183

(Third Defendant)

DOWLING YEPPOON PTY LTD ACN 152 346 926

(Fourth Defendant)

CRAIG ANTONY JOHN DOWLING

(Sixth Defendant)

NICOLA TRACEY DOWLING

(Seventh Defendant)

FILE NO/S:

BS No 6105 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2019

JUDGE:

Bowskill J

ORDER:

In relation to the plaintiff’s application filed 13 June 2019 and the plaintiff’s cross-application filed 27 August 2019, the parties are to provide a form of order reflecting the orders proposed at [45] and [54] below.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the plaintiff contends its sole director entered into an oral “General Agreement” with the sixth defendant (the sole director of the fourth defendant), on behalf of their respective families, to acquire and develop real estate jointly through a joint venture vehicle, the “QD Joint Venture” – where the plaintiff alleges that there was an opportunity for the QD Joint Venture to acquire land at Jimboomba, but steps to bring this about were unsuccessful – where the plaintiff alleges that the sixth defendant continued to negotiate with the vendor of the land by “secret negotiations” in breach of the QD Joint Venture agreement – where the first defendant subsequently became the registered owner of the land – where the plaintiff claims that this occurred “in secret” from it and alleges that the purchase was an opportunity diverted from the QD Joint Venture – where the plaintiff alleges that the first defendant and third defendant undertook a “secret development” of the Jimboomba land, culminating in the sale of the land to a third party – where the plaintiff claims that the sixth defendant, and the fourth defendant through the sixth defendant, acted in breach of the fiduciary duties owed under the General Agreement in relation to the QD Joint Venture, and claims an entitlement to half the proceeds of sale of the developed land – where the plaintiff applied for an interlocutory injunction restraining the defendants from paying out or distributing the proceeds of sale of the land until final determination of the plaintiff’s claim in these proceedings – where, in order to enable the sale of the property to proceed, consent orders were made for the proceeds of sale to be paid into a solicitor’s trust account, and later into court, and the application for an interlocutory injunction adjourned – where the defendants now seek an order dismissing the application, and for payment of the money out of court – where the defendants contend there is no risk of any dissipation or disposal of the relevant defendants’ assets, there is no value to…

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.

Keep reading for free

Create a free CaseChat account to read Waller Projects Pty Ltd v FW Estate Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] QSC 221
Decision Date: 5 September 2019

CaseChat Overview and Summary

The case of Waller Projects Pty Ltd v FW Estate Pty Ltd involved Waller Projects, the plaintiff, seeking an interlocutory injunction to prevent the defendants from distributing the proceeds of sale of a property located in Jimboomba. The defendants, including FW Estate, argued against the injunction and requested payment of the money out of court. The dispute centred on an alleged oral "General Agreement" between the parties' respective families to jointly acquire and develop real estate through a joint venture vehicle. The plaintiff claimed that one of the defendants breached the joint venture agreement by negotiating the purchase of the Jimboomba land in secret, leading to the first defendant becoming the registered owner. The plaintiff also alleged that the first and third defendants undertook a "secret development" of the land, culminating in its sale to a third party, and sought an entitlement to half the proceeds of sale. The defendants opposed the injunction, arguing that there was no risk of dissipation of their assets, that the plaintiff's undertaking as to damages held no value, and that there was prejudice to unrelated third parties.

The primary legal issues the court needed to decide were whether the plaintiff had made out a prima facie case for the relief it sought, and whether, if so, the balance of convenience favoured the grant of the interlocutory injunction. The court also considered the plaintiff's cross-application for the production of various documents and disclosure of certain information by the defendants. The defendants opposed parts of the application, arguing that disclosure had not yet been undertaken, the broad range of documents sought, and that the inquiry into certain information appeared to be a fishing exercise.

In assessing the plaintiff's application for an interlocutory injunction, the court found that the plaintiff had established a serious question to be tried regarding the alleged breaches of fiduciary duty and the existence of the joint venture agreement. The court was persuaded that the balance of convenience favoured the grant of the injunction, particularly given the potential dissipation of assets and the impact on the joint venture. The court also noted the undertakings provided by some of the defendants not to diminish the combined value of their assets below an amount representing half the profits payable to the first defendant. Regarding the plaintiff's cross-application for discovery, the court made orders in part in the terms sought by the plaintiff, noting that the defendants had already provided some of the documents requested and that the remaining documents were necessary to determine the merits of the case.

The court ordered that the parties were to provide a form of order reflecting the orders proposed at [45] and [54] below, including the terms of the interlocutory injunction and the discovery orders.

Orders

Orders of the court

In relation to the plaintiff’s application filed 13 June 2019 and the plaintiff’s cross-application filed 27 August 2019, the parties are to provide a form of order reflecting the orders proposed at [45] and [54] below.

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.

CITATION:	Waller Projects Pty Ltd v FW Estate Pty Ltd & Ors [2019] QSC 221
PARTIES:	WALLER PROJECTS PTY LTD ACN 160 554 165 (Plaintiff) v FW ESTATE PTY LTD ACN 600 909 920 (First Defendant) BREMHA PTY LTD ACN 133 642 458 (Second Defendant) DG JIMBOOMBA DEVELOPMENTS PTY LTD ACN 609 512 183 (Third Defendant) DOWLING YEPPOON PTY LTD ACN 152 346 926 (Fourth Defendant) CRAIG ANTONY JOHN DOWLING (Sixth Defendant) NICOLA TRACEY DOWLING (Seventh Defendant)
FILE NO/S:	BS No 6105 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	5 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2019
JUDGE:	Bowskill J
ORDER:	In relation to the plaintiff’s application filed 13 June 2019 and the plaintiff’s cross-application filed 27 August 2019, the parties are to provide a form of order reflecting the orders proposed at [45] and [54] below.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – where the plaintiff contends its sole director entered into an oral “General Agreement” with the sixth defendant (the sole director of the fourth defendant), on behalf of their respective families, to acquire and develop real estate jointly through a joint venture vehicle, the “QD Joint Venture” – where the plaintiff alleges that there was an opportunity for the QD Joint Venture to acquire land at Jimboomba, but steps to bring this about were unsuccessful – where the plaintiff alleges that the sixth defendant continued to negotiate with the vendor of the land by “secret negotiations” in breach of the QD Joint Venture agreement – where the first defendant subsequently became the registered owner of the land – where the plaintiff claims that this occurred “in secret” from it and alleges that the purchase was an opportunity diverted from the QD Joint Venture – where the plaintiff alleges that the first defendant and third defendant undertook a “secret development” of the Jimboomba land, culminating in the sale of the land to a third party – where the plaintiff claims that the sixth defendant, and the fourth defendant through the sixth defendant, acted in breach of the fiduciary duties owed under the General Agreement in relation to the QD Joint Venture, and claims an entitlement to half the proceeds of sale of the developed land – where the plaintiff applied for an interlocutory injunction restraining the defendants from paying out or distributing the proceeds of sale of the land until final determination of the plaintiff’s claim in these proceedings – where, in order to enable the sale of the property to proceed, consent orders were made for the proceeds of sale to be paid into a solicitor’s trust account, and later into court, and the application for an interlocutory injunction adjourned – where the defendants now seek an order dismissing the application, and for payment of the money out of court – where the defendants contend there is no risk of any dissipation or disposal of the relevant defendants’ assets, there is no value to…