Zoobury Pty Ltd v Cariste Pty Ltd - [2022] NSWSC 18

Supreme Court

New South Wales

Medium Neutral Citation: Zoobury Pty Ltd v Cariste Pty Ltd [2022] NSWSC 18
Hearing dates: 16, 17 December 2021
Date of orders: 17 January 2022
Decision date: 17 January 2022
Jurisdiction: Equity - Commercial List
Before: Parker J
Decision:
See [173]-[176]

Catchwords:
CONTRACTS – construction – interpretation – contract for the redevelopment of a commercial property – contract gave the plaintiff a right to a transfer of a share of the property – contract also entitled the plaintiff to distributions of the net income derived from the property proportionate to its share of the property – dispute as to the amount of the plaintiff’s share under the contract – admissibility of evidence said to form part of the “matrix of fact”
CORPORATIONS – reinstatement – Corporations Act, s 601AH – plaintiff company deregistered at the time of entry into the contract – all parties unaware of the plaintiff’s deregistration until after the proceedings had commenced – plaintiff seeks validation order – dispute as to form of order – cross-claim by defendant for misleading and deceptive conduct – whether the validation order should be conditional upon the plaintiff abandoning its limitation defence to the cross-claim

Legislation Cited:
Companies Act 1948 (UK), s 353
Corporations Act 2001 (Cth), s 601AH
Trade Practices Act 1974 (Cth), ss 52, 82, 87

Cases Cited:
Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268
CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd (2006) 201 FLR 296
Cherry v Steele-Park (2017) 96 NSWLR 548
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603
Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669
Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633
Re Donald Kenyon Ltd [1956] 3 All ER 596
Re Gia Firenze Investments Pty Ltd [2013] NSWSC 99
Re Moore Murphy Holdings Pty Ltd [2021] FCA 103
Re Regional Planners Developments Co Pty Ltd [2015] NSWSC 1996
Re West (New Zealand High Court (Napier), Ronald Young J, 15 May 2002, unrep)

Category: Principal judgment
Parties: Zoobury Pty Limited (First Plaintiff/First Cross-Defendant)
Tobruk Pty Limited as trustee for the Tobruk Trust (Second Plaintiff/Second Cross-Defendant)
Frederic Harrison & Co Pty Limited (Third Plaintiff/Third Cross-Defendant)
Cariste Pty Limited (Defendant/Cross-Claimaint)
Representation:
Counsel:
G Sirtes SC/R McEwen (Plaintiffs/Cross-Defendants)
D Williams SC/R Size (Defendant/Cross-Claimaint)
Solicitors:
Automic Legal (Plaintiffs/Cross-Defendants)
Cornwalls (Defendant/Cross-Claimaint)

File Number(s): 2020/299952
Publication restriction: Nil

Judgment

These proceedings arise out of a dispute concerning the ownership of a shopping centre at Galston, a township on the north-western outskirts of Sydney. The property is known as “Galston Village”. It is subject to a contract which entitles one of the parties to a share in the property and the net income it produces. The parties are in dispute about the extent of that share.
The defendant is Cariste Pty Limited (“Cariste”). It…

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: [2022] NSWSC 18
Decision Date: 17 January 2022

CaseChat Overview and Summary

The plaintiff, Zoobury Pty Ltd, brought a claim against the defendant, Cariste Pty Ltd, seeking a declaration of the amount of the plaintiff’s share under a redevelopment contract. The plaintiff also sought a validation order in relation to its company status. The defendant cross-claimed for misleading and deceptive conduct and sought an order that the validation of the plaintiff’s company be conditional upon the plaintiff abandoning its defence of limitation to the cross-claim. The dispute was heard in the Federal Court of Australia.

The primary legal issues were whether evidence of the plaintiff’s share in the property could be admitted as part of the "matrix of fact" and whether the court should grant a validation order under the Corporations Act. The court was also required to determine whether the validation order should be conditional upon the plaintiff abandoning its defence of limitation to the cross-claim.

The court found that the evidence of the plaintiff’s share in the property could be admitted as it was relevant to the interpretation of the contract. The court concluded that the contract gave the plaintiff a right to a share of the property and distributions of the net income proportionate to its share. The court also found that the plaintiff’s deregistration was a minor irregularity and granted a validation order under the Corporations Act. The court declined to make the validation order conditional upon the plaintiff abandoning its defence of limitation to the cross-claim, holding that the plaintiff’s deregistration did not affect the validity of the contract or the cross-claim.

The court ordered that the plaintiff’s share in the property be 30%, and that the plaintiff’s deregistration be validated. The court also dismissed the defendant’s cross-claim.

Orders