Cases of Note

Property, Leasing and Property Development

  1. REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd (2018) ANZ ConvR 18-076 consideration of illegality on the enforceability of contracts and what constitutes an absence of clean hands that would disentitle a party from equitable relief
  2. Spark Group Pty Ltd v Mammone [2017] NSWSC – a dispute arose over the sale of land. The plaintiff invested time and effort in having plans and development applications prepared for the subdivision of land that it proposed to develop prior to the completion of the purchase of said land. The defendant purported to terminate the contract on the basis that the plaintiff had not complied with a notice to complete.
  3. PNC Lifestyle Investments Pty Ltd v REW08 Projects Pty Ltd [2017] NSWSC 27, (2017) 18 BPR 36,593 – consideration of illegality and contracts that are contrary to public policy – consideration of circumstances in which a court may enforce a contract even if its formation or performance is associated with illegal purposes.
  4. PNC Lifestyle Investments Pty Ltd v REW08 Projects Pty Ltd (No 2) [2017] NSWSC 993 – dispute involving the calculation of damages where a decree of specific performance has been made.
  5. In the matter of Settlers Estate [2017] NSWSC – a dispute involving the purported rescission of contracts for sale of land within a 200-lot subdivision requiring consideration of the reasonable endeavors clause contained in the contract in addition to s66ZL of the Conveyancing Act.
  6. In the matter of Premiere Pty Ltd [2017] NSWSC – a dispute arising from two joint venture agreements involving the merger of two medical practices and the acquisition of land from which to operate said businesses.
  7. Volhan v Nothern Beaches Council [2017] NCAT– a dispute arising from a retail lease relating to a cafeteria located in an aquatic centre and whether pool and carpark closures constituted a derogation from grant.
  8. Praskevas v Dermatis [2017] NCAT– a dispute involving a retail lease where the tenant complained of building defects warranting an abatement of rent.
  9. Cihan v City Tobacconist Pty Ltd [2016] NSWCATCD 26 – retail leases dispute involving damages for loss of rent arising from the lessee’s abandonment of retail premises.
  10. Woodgate v Kisiel [2016] NSWSC- an application for judicial advice in a matter involving a statutory trustee for sale of land pursuant to section 66G of the Conveyancing Act seeking the partition and sale of a parcel of land held by tenants in common.
  11. Trust Company Ltd v Kebab King Australia Pty Ltd [2015] NSWSC 513 – a dispute involving a retail lease in which the tenant argued that noise emanating from a central ventilation system was an ongoing nuisance and constituted a derogation of grant.
  12. In the matter of Equivest [2015] NSWSC – I acted for a tenant of a commercial space who sought to abate rent by reason of a roof collapse.
  13. Smooth Flight Pty Ltd v Mo [2015] NSWCATCD 71 – a dispute involving a retail lease where the tenant complained of building defects warranting an abatement of rent.
  14. Cihan v City Tobacconist Pty Ltd [2015] NSWCATCD 148 – retail leases dispute involving damages for loss of rent arising from the lessee’s abandonment of retail premises.
  15. Lewisham Estates Pty Ltd v LMW Advisory Group Pty Ltd [2014] NSWCATCD 65 – a dispute between a property developer and a real estate agent in respect of commissions payable on the sale of a parcel of land valued at $50M that was sold to Meriton Group. The case remains the largest monetary award made in NCAT.
  16. Lockrey v Historic Houses Trust (NSW) [2013] NSWSC – This case involves a dispute between a lessor and lessee of a retail premises from which a cafeteria, known as MOS Café is located at the Museum of Sydney. The issue arising was whether the lessor was entitled to treat the Lease as forfeited and if so whether relief against forfeiture ought to be granted.
  17. Groz Investments Pty Ltd v Ronro Pty Ltd [2013] NSWSC 794 – joint venture dispute involving property development in the South Coast of NSW.
  18. Xu v Georges [2013] NSWSC 880 – dispute arising from the preparation of architectural drawings in support of a development application
  19. Mann v Bridge Hill [2013] NSWSC – a dispute involving changes to an off the plan development and the recovery of the deposit as a result of those changes that were to common areas and shared facilities.
  20. Lockrey v Historic Houses Trust (NSW) (2012) 84 NSWLR 114 – appeal from a decision at first instance involving the operation of the Retail Leases Act in a dispute arising from the lessor’s refusal to permit a transfer of the lease from two tenants in common to one of those tenants.
  21. Lockrey v Historic Houses Trust of New South Wales [2012] NSWSC 654 – dispute arising from the lessor’s refusal to permit a transfer of the retail lease from two tenants in common to one tenant.
  22. In the matter of WAN 13 Pty Ltd [2012] NCAT – dispute between a property developer and a real estate agent in respect of commissions payable on the sale of an off the plan development.
  23. Holt v Horley [2012] NSWSC – the dispute arose from a joint venture agreement to run a boarding house. There was a collateral agreement that contained an option to purchase land from which the business was to be run. The claim involved consideration of equitable principles including promissory estoppel together with an exploration of each joint venturer’s rights and entitlements.
  24. The Application of Richard Albarran, Harb v Harb [2010] NSWSC 1251, (2010) 17 BPR 33,295 – an application for judicial advice in a matter involving a statutory trustee for sale of land pursuant to section 66G of the Conveyancing Act seeking the partition and sale of a parcel of land held by tenants in common.
  25. Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191 – claim by lessee that the lessor was estopped from denying that it had a right or entitlement to occupy part of a shopping centre in the absence of an express provision in the Retail Lease
  26. Chronopoulos v. Carossel (No 2) Pty Limited [2010] NSWADT 236 – claim by lessee that the lessor was estopped from denying that it had a right or entitlement to occupy part of a shopping centre in the absence of an express provision in the Retail Lease.
  27. DIC Australia Pty Ltd v Quality Print Group Pty Ltd [2010] NSWSC 636 – asset preservation order arising from the imminent sale of the business undertaking that would have resulted in the creditor’s interest in said undertaking being extinguished.
  28. McHugh Holdings Pty Ltd v Newtown Colonial Hotel Pty Ltd (2008) 73 NSWLR 53 – a restraint of trade case involving the attempted transfer of a liquor license from the licensee to the lessor
  29. Digital Eskimo Pty Ltd v Hanave Pty Ltd [2008] NSWSC 438 – application to restrain the lessor from re-entering demised premises pending the lessee’s removal of its goods from the premises.
  30. Balanced Securities Ltd v Jones [2007] NSWSC 698 – caveat dispute involving the enforceability of caveats purporting to be maintained over a suite of properties.

Corporations and Insolvency

  1. Recycling Services Pty Ltd [2017] NSWSC–  the dispute involved the resistance of a winding up order on the basis of the company’s solvency
  2. Body Technology Pty Ltd v 180 Corporate Pty Ltd [2016] NSWSC – dispute arose from the provision of advice in respect to a corporate restructuring. The directors were sued for breaches of directors duties and cross claimed against their advisors.
  3. Re Domicgra Trading Pty Ltd [2015] NSWSC 1918 – the dispute involved the setting aside of a statutory demand on the grounds that there was a legitimate dispute as to the company’s indebtedness to the creditor who issued the statutory demand.
  4. Re Imperium Projects Pty Ltd [2015] NSWSC 123 and associated matters – the dispute involved directors of a construction company who were defendants in a statutory derivative action brought by a former director/shareholder. The claim made against the directors involved alleged breaches of director’s duties arising from director’s loans and the alleged misappropriation of company labour and resources.
  5. Re Fishinthenet Investments Pty Ltd [2014] NSWSC 260 – the dispute involved shareholders who brought a statutory derivative action against the director of two companies in respect of his failure to secure the best available sale price for the business undertaking and real property owned by the company.
  6. Allied Express Transport Pty Ltd v Exalt Group Pty Ltd [2013] FCA 455 and associated cases – the dispute involved a creditor who successfully resisted a company’s application to have the company enter into a Deed of Company Arrangement on the basis that it was in the company’s best interest to have the company wound up in insolvency.
  7. Nguyen v Lion Finance Pty Ltd [2012] FMCA 880 – Application to set aside sequestration order under r.16.05 of the Federal Magistrates Court Rules or to extend time for and review sequestration order made by a registrar or to annul bankruptcy.
  8. Franks v Equititrust Ltd [2012] FMCA 1180 – Application to set aside a Bankruptcy Notice on the basis of various defects including the arrant inclusion of interest.
  9. Virtual Technologies International Ltd v Gye [2010] NSWSC 399 – the dispute involved the setting aside of a statutory demand on the grounds that there was a legitimate dispute as to the company’s indebtedness to the creditor who issued the statutory demand.

Mortgages

  1. Kaji Australia Pty Ltd v Glover [2017] NSWSC 120 and associated cases – the dispute involves a loan secured by mortgage. The issue in dispute was whether the terms were unjust so as to warrant the Court to exercise its discretion under the Contracts Review Act.
  2. Bay Bon Investments Pty Ltd v Damevski [2012] NSWSC 1408 – the dispute involves a loan secured by mortgage. The issue in dispute was whether the terms were unjust so as to warrant the Court to exercise its discretion under the Contracts Review Act.
  3. Driat Pty Ltd v Thomas [2012] NSWSC 683 and associated cases – the dispute involves a loan secured by mortgage. The issue in dispute was whether the terms were unjust so as to warrant the Court to exercise its discretion under the Contracts Review Act.

Building and Construction

  1. Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 – the dispute at first instance involved a building defects claim. The appeal was directed to the issue as to whether the Tribunal’s discretion miscarried when determining that the preferred outcome was a money order under s48O of the Home Building Act.
  2. Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31 and associated cases including Special Leave Application – appeal from first instance decision involving the setting aside of an adjudication determination. The question in issue was whether the contract was a building contract within the meaning of the Building and Construction Industry (Security of Payments) Act.
  3. H M Australia Holdings Pty Limited v Edelbrand Pty Limited t/as Domus Homes & Anor [2011] NSWSC 604 – the dispute arises from a construction contract and whether the adjudicator committed a jurisdictional error.
  4. Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 and associated clams – a defects claim under the Home Building Act. The homeowner claimed damages for breach of statutory warranties under the Act. The defects were substantial in nature and involved lengthy conclave expert evidence. After the appeal, the matter was remitted and the homeowner’s claim was successful.
  5. Pavert v Reward Homes [2015] NCAT – a defects claim under the Home Building Act. There were over 50 claimed defects and all of the significant defects were successfully defended. This involved robust cross examination of an expert leading the Tribunal to make adverse findings in respect of the homeowner’s expert.
  6. Xu v Georges [2013] NSWSC 880 – the dispute involved the provision of architectural services for the purpose of furthering a development application.
  7. Owners Corporation SP 82041 v Shimden [2013] NCAT – the dispute arose between a builder who claimed against an Owner’s Corporation in respect of money it was owed for home building works
  8. Levadetes Pty Ltd v Iberian Artisans Pty Ltd [2009] NSWSC 641 – the dispute arose from a construction contract. The question in issue was whether the contract was a building contract within the meaning of the Building and Construction Industry (Security of Payments) Act, in particular, whether the construction contract was for the carrying out of residential building work.

Equity

  1. Nitopi v Nitopi [2018] NSWSC 609 – the dispute arose in respect of three loans to the plaintiff that amounted to over $6M that was then provided to her son. The loans defaulted and Westpac took possession of the security and exercised its power of sale. The plaintiff sought to pursue her son for the loss and damages that she suffered.
  2. Garcia Arenas v Fica [2017] NSWSC 1769 – family provision claims brought by two adult children and one minor against a modest estate.
  3. Sydmelb Pty Ltd v Bonasella Pty Ltd [2017] NSWSC – the dispute arose from a sale of business agreement. The plaintiff sued for the return of its deposit on the basis that the defendant had engaged in misleading and deceptive conduct in respect to the financial performance of the business.
  4. HA Jacob Pty Ltd v Green [2013] NSWSC – the dispute arose from a joint venture pursuant to which the plaintiff and defendants agreed to market and sell farming equipment in accordance with a master license agreement. The case involved a determination of each joint venturer’s rights and entitlements.
  5. Palin v Vetterli [2013] NSWSC 893 – the dispute arose from the sale of a bakery business. The plaintiff sought to have the agreement specifically performed, the defendant claimed damages on the basis that it alleged the plaintiff has engaged in misleading and deceptive conduct as to the financial performance of the business
  6. Walker v Stuart [2009] NSWSC – the dispute arose from a joint venture and associated share farming agreement with a pastoral land owner. The case involved claims for promissory estoppel and a determination of each joint venturer’s rights and entitlements. It also involved complexities arising from the demutualization of a dairy co-operative tat occurred throughout the currency of the agreement.
  7. Winefield v Clarke [2008] NSWSC 882 – the dispute arose in respect of a transfer of interest in property by aged mother to daughter.

Costs

  1. WKA Legal Pty Ltd v Gleeson [2018] NSWSC 318 – dealt with the question as to whether civil proceedings ought to be held in abeyance of a costs assessment.
  2. Albarouki v Prime Lawyers Pty Ltd (2013) 16 DCLR(NSW) 385 – appeal from costs assessment alleging that the costs assessor erred at law.

Miscellaneous cases of interest

  1. Fuimaono v Director of Public Prosecutions [2011] NSWSC 472 – the dispute involved an order in the nature of certiorari setting aside the decision of a magistrate who refused a self-represented litigant to withdraw his plea of guilty.
  2. HCCC v Williamson [2011] NSWNMT 1 (28 March 2012) – disciplinary proceedings in respect of a nurse who was found to have engaged in unsatisfactory professional conduct
  3. Vetterli v Palin [2011] NSWIRComm 83 (24 June 2011) – whether the sale of business agreement was an unfair contract within the meaning of section 106 of the Industrial Relations Act 1996 and whether the Industrial Relations Commission had jurisdiction to determine the dispute.
  4. Corney v Hose [2010] FMCAfam 1462 – a dispute involving the validity of a binding financial agreement.
  5. Department of Primary Industries v Schembri [2009] NSWSC 1006 – involved an application brought by the Department to confiscate a fishing vessel for breach of the Fisheries Management Act.