Thompson v White & Anor; ACDC v Thompson [2005] NSWSC 1257

New South Wales Supreme Court

CITATION : Thompson v White & Anor; ACDC v Thompson [2005] NSWSC 1257

HEARING DATE(S) : 7/11/05, 9/11/05, 10/11/05, 11/11/05, 14/11/05, 15/11/05, 16/11/05, 18/11/05, 24/11/05

JUDGMENT DATE : 8 December 2005

JUDGMENT OF : Gzell J

DECISION : Declaration that land held as a joint venture asset reference to expert referee to determine questions of quantification.

CATCHWORDS : CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether land purchased in the name of one party was the subject of his individual investment or the subject of a joint venture between him and two other parties - No principles involved

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

Aerated Concrete, Design and Construction Pty Ltd Byron Ward Thompson PARTIES : Julian John White Romeo Medina Libut

FILE NUMBER(S) : SC 5929/03; 2685/03

Mr G George - Aerated Concrete, Design & Construction Pty Ltd and Romeo Medina Libut COUNSEL : Mr F Hicks - Byron Ward Thompson Mr Julian John White - In Person

Stephen Blanks & Associates SOLICITORS : Forsters Solicitors

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 8 DECEMBER 2005

5929/03 AERATED CONCRETE DESIGN & CONSTRUCTION PTY LTD v BYRON WARD THOMPSON (NO 3) 2685/03 BYRON WARD THOMPSON v JULIAN JOHN WHITE & ANOR (NO 3) JUDGMENT

Introduction 1 Aerated Concrete, Design and Construction Pty Ltd constructed a house on land at Seaforth registered in the name of Byron Ward Thompson. Julian John White and Romeo Medina Libut were the directors and shareholders of ACDC. They allege that they and Mr Thompson agreed that they would purchase the Seaforth property, construct the house, sell it and share the profits equally. Mr Thompson alleges that there was no such joint venture, the house was to be the residence of Mrs Thompson and him, ACDC was retained by him to build the house and he financed the acquisition of the land and the construction of the house. 2 The central issue in the proceedings is the determination of what was the agreement between the parties. Issues of quantification of claims will depend upon that determination. ACDC claims against Mr Thompson the balance of its charges for construction at cost plus 10% for overheads with reduced payments for labour and service to Mr White and Mr Libut at a maximum of $800.00 per week and to Mr Thompson at $25.00 per hour. Mr Thompson alleges that ACDC received progress payments to which it was not entitled, failed to undertake the works for a reasonable price within a reasonable time and ACDC is obliged to account for the costs of the performance of the work and to reimburse him. Mr White claims that he suffered loss by reason of Mr Thompson's failure to comply with the joint venture agreement, by reason of his receipt of reduced wages and payments he made towards the venture. A similar claim is made by Mr Libut. 3 I made an order pursuant to the Uniform Civil Procedure Rules 2005, r 28.2 that issues other than those specified below be heard and determined before the hearing and determination of those specified matters. They were as follows: "(a) What was the total amount spent on the construction of the house at Seaforth by ACDC? (b) What was the total amount spent on the construction by Mr Thompson? (c) Was the amount spent on the construction by ACDC reasonable? (d) Was the amount spent on the construction by Mr Thompson reasonable? (e) What was the value of the work undertaken on the construction by Mr Libut? (f) What was the net purchase price of the property? (g) What was the net profit, or loss, made from the purchase, development and sale of the property? (h) What amount is payable to ACDC for the work undertaken by it on the construction? (i) What amount is payable to Mr Thompson for the work undertaken by him on the construction? (j) What amount is payable to Mr Libut for the work undertaken by him on the construction? (k) What loans: (i) Were advanced by Mr Thompson? (ii) Were advanced by Mr White? (iii) Were advanced by Mr Libut? (iv) Were advanced by ACDC? (l) What was the net sale price of the property? (m) What are the respective shares of any profit, or loss, from the purchase, development and sale of the property due to Messrs Thompson, White and Libut? (n) What is the amount of any profit, or loss, made from the purchase, development and sale of the property due to Messrs Thompson, White and Libut?" 4 I will make an order pursuant to the Uniform Civil Procedure Rules 2005, r 20.14(1) referring the above questions, or variations of them consequent upon my determination of the other issues, to an expert referee, or to expert referees with differing qualifications.