Anjoul v Anjoul (No 4) [2023] NSWSC 142

Supreme Court New South Wales

Medium Neutral Citation: Anjoul v Anjoul (No 4) [2023] NSWSC 142 Hearing dates: 13 December 2022 Date of orders: 27 February 2023 Decision date: 27 February 2023 Jurisdiction: Equity Before: Robb J Decision: (1) ORDER declaring the deed between the plaintiff and the defendant dated 3 October 2013 (Deed) void in whole. (2) ORDER that the Deed be set aside. (3) ORDER that, subject to the set off provided for in order 6 below, the fair and reasonable amount of compensation payable to the plaintiff for the renovation and improvements to [the Winston Hills property] is $400,000. (4) ORDER that the plaintiff pay the defendant's costs of the proceedings in the fixed gross sum of $215,000. (5) ORDER that the total amount of costs payable by the plaintiff to the defendant in the sum of $215,000 be set off against the amount of compensation payable to the plaintiff in the sum of $400,000 so that the total amount payable by the defendant to the plaintiff is $185,000. (6) ORDER that the amount payable by the defendant to the plaintiff in the sum of $185,000 in order 5 will, subject to further order, be stayed so that it is only payable out of the proceeds of sale of the property called the Winston Hills property in the judgments in these proceedings. (7) ORDER that the Amended Statement of Claim otherwise be dismissed. (8) ORDER that the Cross Claim otherwise be dismissed. (9) GRANT the parties liberty to apply on 3 days' notice. Catchwords: EQUITY — general principles and maxims — they who seek equity must do equity — defendant successful in defending enforcement of deed on grounds of unconscionable conduct and Contracts Review Act 1980 (NSW), s 7 — Court finds that defendant ought to pay plaintiff compensation as condition to making order declaring deed void — plaintiff entitled to $400,000 in compensation — order that the total amount of costs payable by the plaintiff to the defendant be set off against compensation payable by plaintiff to defendant COSTS — party/party — exceptions to general rule that costs follow the event — offers of compromise/Calderbank offers — where Calderbank offer made on an "inclusive of costs" basis — where it was not unreasonable for the defendant to decline plaintiff's Calderbank offer COSTS — party/party — bases of quantification — ordinary basis — where costs determined on a gross sum basis Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Contracts Review Act 1980 (NSW), s 7 Home Building Act 1989 (NSW), ss 10(1)(b), 94(1) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Anjoul v Anjoul [2021] NSWSC 592 Anjoul v Anjoul (No 2) [2021] NSWSC 1511 Anjoul v Anjoul (No 3) [2022] NSWSC 1456 Burwood Council v Visy Paper Pty Ltd atf Southern Paper Converters Trust (No 2) [2021] NSWSC 1035 Commonwealth v Gretton [2008] NSWCA 117 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 DSE (Holdings) Pty Ltd v Intertan Inc [2004] FCA 1251 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 GEC Marconi Systems Pty Ltd (t/as Easams Australia) v BHP Information Technology Pty Ltd [2003] FCA 688 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Van Zonneveld v Seaton [2005] NSWSC 175 Ying v Song [2011] NSWSC 618 Texts Cited: GE Dal Pont, Law of Costs, (5th ed, 2021, LexisNexis) Category: Consequential orders Parties: Jerry Anjoul (Plaintiff) Ashley Anjoul (Defendant) Representation: Counsel: G McNally SC (Plaintiff) P Newton SC (Defendant) Solicitors: Edwards Kirby Lawyers (Plaintiff) Memcorp Lawyers (Defendant) File Number(s): 2018/00383865