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Zugic v Vesuvius Australia Pty Ltd

Zugic v Vesuvius Australia Pty Ltd

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Case Copied 21 February 2020 55 min read

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Zugic v Vesuvius Australia Pty Ltd [2020] NSWSC 106
Hearing dates: 5 – 8 August 2019
Decision date: 21 February 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss the plaintiff’s claim with costs.

Catchwords:
ESTOPPEL — Promissory Estoppel — Whether clear and unambiguous representation that defendant would enter into lease of premises on proposed terms and/or representation as to an appropriate occupation date and that defendant would sign lease for premises — Claim for equitable compensation
EQUITY — Assignment — Assignability of cause of action in promissory estoppel — Whether assignee had a ‘genuine commercial interest”
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 12.7, 14.14
Cases Cited: Ajayi (t/a Colony Carrier Co) v RT Briscoe (Nigeria) Ltd [1964] 3 All ER 556;1 WLR 1326
Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12
Austotel Pty Ltd & Anor v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 531
Beaton v McDivitt (1985) 13 NSWLR 134
Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142
Busby v Walker (1956) 84 So 2d 304
Caxton Street Agencies Pty Ltd v Korkidas [2002] QSC 210
Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 QB 371
Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752; UKHL 55
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26
Davidovic v Vesuvius [2014] NSWSC 1066
Davidovic v Vesuvius Australia Pty Ltd (No 2) [2016] NSWSC 1679
Davidovic v Vesuvius Australia Pty Ltd (No 3) [2017] NSWSC 76
Davidovic v Vesuvius Australia Pty Ltd (No 4) (Supreme Court of New South Wales, Stevenson J, 31 March 2017, unrep)
Delaforce v Simpson-Cook (2010)78 NSWLR 483; [2010] NSWCA 84
DHJPM Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348
Donis v Donis (2007) 19 VR 577; [2007] VSCA 89
Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105
E Co v Q [2018] NSWSC 442
Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50
Equity Capital Markets Limited [2008] NSWCA 206
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 49; [2012] HCA 7
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; [1964] 2 WLR 618
Galaxidis v Galaxidis [2004] NSWCA 111
Giumelli v Giumelli (1999) 196 CLR 101
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 64; [1937] HCA 58
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2008] NSWCA 206
Jones v Dunkel [1959] HCA 8

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: [2020] NSWSC 106
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of Zugic v Vesuvius Australia Pty Ltd involved the plaintiff, Mr Zugic, suing Vesuvius Australia Pty Ltd over claims of promissory estoppel. Mr Zugic alleged that the defendant had made clear and unambiguous representations that they would enter into a lease for premises on proposed terms, including an appropriate occupation date, and that they would sign the lease. The plaintiff sought equitable compensation for the defendant's alleged failure to honour these representations. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the representations made by the defendant were clear and unambiguous, and if so, whether the plaintiff was entitled to equitable compensation for the defendant's failure to honour them. Additionally, the court needed to determine if the assignee had a 'genuine commercial interest' in the cause of action for promissory estoppel. This was critical as it related to the assignability of the cause of action.

The court held that the representations made by the defendant were not clear and unambiguous, and therefore, the plaintiff's claim for promissory estoppel failed. Furthermore, the court determined that the assignee did not have a 'genuine commercial interest' in the cause of action for promissory estoppel, which affected the assignability of the cause of action. Consequently, the plaintiff's claim was dismissed in its entirety.

No further orders were made by the court. The dismissal of the claim meant that Mr Zugic was not entitled to any compensation from Vesuvius Australia Pty Ltd for the alleged failure to honour the representations. The decision underscored the importance of clear and unambiguous representations in promissory estoppel claims and highlighted the requirements for assignability of such causes of action.

Orders