DS Retirement Pty Ltd v Mann Street Enterprises Pty Ltd atf Mann Street Enterprises Trust [2024] NSWSC 1314

Supreme Court New South Wales

Medium Neutral Citation: DS Retirement Pty Ltd v Mann Street Enterprises Pty Ltd atf Mann Street Enterprises Trust [2024] NSWSC 1314 Hearing dates: 15 October 2024 Date of orders: 22 October 2024 Decision date: 22 October 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) Judgment for $600,000 be entered in favour of the plaintiff; (2) The defendants' motion filed on 3 September 2024 is dismissed; and (3) The defendants are to bear the plaintiff's and second cross-defendant's costs of both motions, as agreed or assessed. Catchwords: CONTRACTS — construction — where term of deed stipulated time for payment of amount owing to plaintiff — where interpretation of that term was disputed — where parties were legally represented at time of entry into deed — where interpretation propounded by defendants commercially nonsensical — where defendants failed to call evidence from their legal representatives about the parties' claimed common intention — where evidence of surrounding circumstances supports plaintiff's interpretation CONTRACTS — rectification — alleged common mistake as to time for payment of amount owing under a deed — alleged ambiguity as to time for payment — where express term in deed is clear — where there was no clear and convincing proof of an alternate common intention at time of entry into deed JUDGMENTS AND ORDERS — entry — where parties executed consent judgment for $800,000 — where $600,000 remains outstanding — whether judgment could be entered in favour of plaintiff for $600,000 — whether the conditions for entry of consent judgment provided by parties' deed satisfied Legislation Cited: Civil Procedure Act 2005 (NSW), s 73 Supreme Court Act 1970 (NSW), s 63 Uniform Civil Procedure Rules 2005 (NSW), r 20.31 Cases Cited: BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319 Bush v National Australia Bank (1992) 35 NSWLR 390 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) NSWLR 329 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170 Harris v Smith [2008] NSWSC 545 In the matter of Jimmy's Recipe Pty Ltd (No 2) [2020] NSWSC 632 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Re Golden Key Ltd [2009] EWCA Civ 636 RHG Mortgage Limited v Ianni [2015] NSWCA 56 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Sui v Jiang [2021] NSWCA 285 Category: Principal judgment Parties: Claim: DS Retirement Pty Ltd (Plaintiff) Mann Street Enterprises Pty Ltd atf Mann Street Enterprises Trust (First Defendant) James Michael Moses (Second Defendant)