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XR Property Developments Pty Ltd v Sekers

XR Property Developments Pty Ltd v Sekers

Case [2018] NSWSC 1181 31 July 2018

Contempt of Court

Enforcement Orders

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: XR Property Developments Pty Ltd v Sekers [2018] NSWSC 1181
Hearing dates: 27 July 2018
Date of orders: 27 July 2018
Decision date: 31 July 2018
Jurisdiction: Equity - Applications List
Before: Kunc J
Decision:
Defendant ordered to pay money pursuant to undertaking given to the Court

Catchwords: PROCEDURE — Contempt, attachment and sequestration — Enforcement of undertaking given to the Court to guarantee payment of costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Encroachment of Buildings Act 1922 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Baker v Beckett (Supreme Court (NSW), 26 May 1998, unrep)
Lahoud v Lahoud [2012] NSWSC 284
McIntyre v Perkes (1988) 15 NSWLR 417
Spindler v Balog (1959) 76 WN (NSW) 391
XR Property Developments Pty Limited v Denning Real Estate Pty Limited [2015] NSWSC 1937
XR Property Developments Pty Limited v Denning Real Estate Pty Limited (No 2) [2016] NSWSC 556
Xu v Wan Ze Property Development (Aust) Pty Ltd (in liquidation) [2014] FCA 461; (2014) 315 ALR 523
Young v Jackman (1986) 7 NSWLR 97
Texts Cited: J O’Donovan and J Phillips, Modern Contract of Guarantee (3rd ed, Looseleaf, Thomson Lawbook Co)
Category: Principal judgment
Parties: XR Property Developments Pty Ltd (Plaintiff)
Daniel Sekers (Defendant)
Representation:
Counsel:
J Doyle (Plaintiff)
C Lee (Defendant)
Solicitors:
Connor & Co Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2018/49086
Publication restriction: No

Judgment

Summary

Last Friday, after a hearing in the Applications List which took most of the day and concluded after 4.00pm, I made these orders:

“The Court orders:
1. The defendant is to pay the plaintiff within seven days:
(a) $294,602.84; and
(b) interest on the sum referred to in paragraph 1(a) calculated from that date which is 28 days after 5 December 2017 up to and including today at the rate prescribed pursuant to s 101 of the Civil Procedure Act NSW (2005).

2. The defendant is to pay the plaintiff’s costs of the proceedings on the indemnity basis.
3. DIRECT the plaintiff to provide to the Court and to the defendant on or before Monday 30 July 2018 the calculation of the amount of interest referred to in order 1(b).”

The orders have the effect of requiring the defendant (“Mr Sekers”) to perform a personal undertaking which he had given to the Court in August 2017 (the “Undertaking”). The Undertaking was to guarantee the payment by Mr Sekers’ company Denning Real Estate Pty Ltd (“Denning”) of costs for which Denning had been held liable to pay the plaintiff, XR Property Developments Pty Ltd (“XR”). The principal of XR is Mr Frank Shien (“Mr Shien”).
In making the orders set out above, the Court refused Mr Sekers’ application that he be released from the Undertaking on the basis that he would agree to pay into Court the money which was the subject of the Undertaking, to be held pending the resolution of proceedings recently commenced by Denning against XR (the “Compensation Proceedings”). The…

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 XR Property Developments Pty Ltd v Sekers

Details

AGLC: XR Property Developments Pty Ltd v Sekers [2018] NSWSC 1181
Case: [2018] NSWSC 1181
Decision Date: 31 July 2018

CaseChat Overview and Summary

XR Property Developments Pty Ltd sought enforcement of an undertaking it had given to the court, which guaranteed payment of costs, against Sekers. The case involved a dispute over ownership and control of certain property and related contractual obligations. The dispute was heard in the Supreme Court of New South Wales.

The court was required to determine whether the undertaking was enforceable and whether the respondent had breached it by failing to make the guaranteed payment. The primary focus was on whether the undertaking was binding and the extent of the obligations imposed by it. The court examined the terms of the undertaking and the circumstances under which it was given.

The court held that the undertaking was enforceable and that the respondent had indeed breached it by failing to make the guaranteed payment. The court noted that the undertaking was clear and unambiguous in its terms and that the respondent had expressly agreed to its terms. The court further held that the respondent had the means to make the payment but had chosen not to do so. The court ordered the respondent to pay the guaranteed amount within a specified period. Additionally, the court imposed costs on the respondent for the proceedings.

Orders