LAURENA PTY. LTD. & ORS. V. VILANTI PTY. LIMITED & ORS. [1999] NSWSC 37

New South Wales Supreme Court CITATION : LAURENA PTY. LTD. & ORS. V. VILANTI PTY. LIMITED & ORS. [1999] NSWSC 37 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1620/98 HEARING DATE(S) : 16-20 November 1998 and 10th December 1998 JUDGMENT DATE : 12 February 1999

Laurena Pty. Limited 1P Desmond Garry Lee 2P PARTIES : Bruce Michael Wood 3P Vilanti Pty. Limited and Sinteria Pty. Limited 1st Defendants C.J. Milledge, I.F. Napier, T. Kapeleris, C.J. & F.J. Milledge Management Pty. Limited, Kapeleris Management Services Pty. Limited and I. & F. Management Services Pty. Limited 2nd Defendants Kitchener Holdings Pty. Limited 3rd Defendants JUDGMENT OF : Hodgson CJinEq;

Mr. D. Smallbone Plaintiffs COUNSEL : Mr. J. Darvall 1st, 2nd, 4th & 6thnamed Second Defendants and 3rd Defendant Mr. M. Zammitt 3rd & 5thnamed Second Defendants G.J. Gooden, Balmain for Plaintiffs SOLICITORS : Birch Partners, Bankstown for 1st, 2nd, 4th and 6thnamed Second Defendants and 3rd Defendant Kevin Martin & Co., Burwood for 3rd & 5thnamed Second Defendants CATCHWORDS : CONTRACTS; JUDGMENTS AND ORDERS; SPECIFIC PERFORMANCE; A deed relating to a unit trust, entered into in settlement of legal proceedings, provided that a certain contract be entered into, that certain payments should be in full satisfaction of all moneys due to certain unit holders from the trust, and that the trust release certain loan accounts. The most recent approved accounts of trust did not disclose such loan accounts, but draft accounts had been prepared substituting those loan accounts for another loan account. The deed did not provide for the surrender or transfer of the units of the unit holders who were to receive the payments. A contract was later entered into which was not precisely in the terms provided by the deed. HELD (1) that in the circumstances of the entry into the contract, the parties manifested an intention that it be performance of the deed; that the deed mainfested an intention that it proceed on the basis of the draft accounts; and that unit holders who had no money due to them from the trust would be ordered to surrender or transfer their units. Consent orders were made prior to the hearing which included some of the final releif sought by the plaintiff. The defendants sought to have them set aside on the ground that, on giving consent, they were mistaken as to their effect. HELD (obiter) that although the unilateral mistake would have been insufficient to set aside final orders, the consent orders were closely interdependent with matters still in issue, so should be treated as interlocutory, and could have been set aside. DECISION : Stood over for short minutes