Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145 Hearing dates: 5 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Before: Meagher JA at [1]; Kirk JA at [2]; Griffiths AJA at [93] Decision: (1) Appeal allowed in part, with no order made as to the costs of the appeal. (2) Set aside order 14 made by the Supreme Court on 6 September 2022 (dismissing the cross-claim) to the extent that the cross-claim relates to the claimed $590,000 loan from Mega-Top Cargo Pty Ltd to Nanevski Developments Pty Ltd, and in lieu thereof order judgment for Mega-Top Cargo Pty Ltd in the amount of $590,000 plus interest on that amount from 5 March 2019 calculated at the rates referred to in Practice Note SC Gen 16. (3) Declare that the $302,500 further deposit paid towards the Vista Street property on 9 July 2015 was paid from the bank accounts of Mega-Top Cargo Pty Ltd as a contribution to the partnership by Ken Slaveski. (4) Set aside the declaration in order 3(a) (relating to the entitlement to charge for consultancy work) made by the Supreme Court on 6 September 2022. (5) Amend order 12 made by the Supreme Court on 6 September 2022 (relating to the taking of an account) such that at the end of the sentence the following words are added: "as varied by the Court of Appeal". (6) If either the appellants or the respondents seek an order relating to the costs of the proceedings below other than that proposed at [90] of this Court's judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within seven days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days. Catchwords: PARTNERSHIPS — Winding up — Accounts — Whether monies advanced were contributions made to the partnership then loaned to a partner, or a direct loan outside the partnership — Parties not manifesting legal sophistication — Application of Occam's Razor APPEALS — From finding of fact — Proof of undocumented payments of large sums of cash is fraught — Inherent unlikelihood of payment using very large sums in physical cash for a commercial transaction APPEALS — From finding of fact — Contribution of a sum of $200,000 was documented — Does not matter whether the payments were made to assist in the purchase of one property or another, or made in cash or otherwise, where account is to be taken CONTRACTS — Remedies — Declarations — Pleadings — Claimed contractual entitlement to consultancy fees not pleaded nor an issue fairly raised in the proceedings Legislation Cited: Home Building Act 1989 (NSW), s 10 Partnership Act 1892 (NSW), s 24(1) Cases Cited: Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820 Briginshaw v Briginshaw (1938) 60 CLR 336 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; [2022] HCA 1 Dare v Pulham (1982) 148 CLR 658 Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Nanevski Developments Pty Ltd v Slaveski; Mega-Top Cargo Pty Ltd v Nanevski Developments Pty Ltd [2022] NSWSC 1066 Sergei Sergienko v AXL Financial Pty Limited [2021] NSWSC 297 Category: Principal judgment Parties: Ken Slaveski (First Appellant) Biljana Slaveski (Second Appellant) James Slaveski (Third Appellant) Mega-Top Cargo Pty Ltd (Fourth Appellant)