Udowenko v Rasevi Pty Ltd (No.2) [1996] NSWCA 540

Udowenko v Rasevi Pty Ltd (No.2) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, Simos AJA and ABADEE AJA 3 September 1996

[1996] NSWCA 540

Abadee AJA. The appellant, Wolodymyr Udowenko, by his amended notice of appeal, appeals from two judgments of Bryson J, sitting in the Equity Division and given on 12 March 1992 and 8 April 1992 respectively.

In 1991 the plaintiff Rasevi Pty Limited ('Rasevi') instituted proceedings by summons against four defendants, Valentyn Udowenko, Michael Udowenko, Helen Udowenko and the appellant. These persons were members of the same family. The first defendant is the brother of the appellant and the second and third defendants named in the summons are the parents of the appellant.

For reasons already given in relation to an application for adjournment the first three defendants are not parties to this present appeal. Indeed, in respect of the first defendant, in 1993 the judgment entered against him was set aside by Waddell CJ in Eq

The issues raised in the proceedings between the parties related to the ownership, possession and delivery of a number of horses then held at the defendant's property at Vacy, apparently a property that bore the description and name 'Windarra'.

The plaintiff's claim before Bryson J was that in, or about, April or May 1989, it was agreed as and between it and the defendants that they should engage in a horse breeding venture at the defendant's stud and that they would share the profits and losses of the joint venture. Importantly the agreement was claimed to have been an oral one, made by a Mr Jones, a director of Rasevi, and Mr Wolodymyr Udowenko, the appellant on behalf of all the defendants.

The plaintiff claimed that it was a term of the joint venture agreement that certain horses were to be agisted on the defendant's property. In June 1989 the plaintiff delivered horses to Windarra, including two mares. Between July of 1989 and April 1991 the plaintiff also delivered other horses to Windarra unrelated to the agreed horse breeding venture.