John Nelson Developments Pty Limited v Focus National Developments Pty Limited [2010] NSWSC 150

New South Wales Supreme Court

CITATION : John Nelson Developments Pty Limited v Focus National Developments Pty Limited [2010] NSWSC 150

HEARING DATE(S) : 8, 9, 10 and 11 December 2009

JUDGMENT DATE : 5 March 2010

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

1. A declaration that the first defendant is entitled to restitution in respect of the contributions it made pursuant to the Joint Venture Agreement with the plaintiff towards the costs of their failed joint venture project, those contributions amounting to $90,086.22 excluding GST. 2. An order that the second defendant pay to the first defendant the controlled monies held in its trust account referable to the proceeds of sale of the property the subject of the joint venture and any interest which has accrued thereon. DECISION : 3. An order that any shortfall between the moneys held by the second defendant and the amount of $90,086.22 be paid by the plaintiff to the first defendant. 4. An order that the first defendant pay interest on the amount of the judgment debt from the date on which the sale proceeds were placed in the second defendant's trust account at court rates. 5 The plaintiff's statement of claim be dismissed with costs.

CATCHWORDS : CONTRACT – joint venture agreement – expert determinations under terms of contract – whether expert determinations binding on the parties – whether expert has an obligation to accord procedural fairness– effect of mistake on the part of the expert –– scope of guarantee under the contract – EQUITY – declaration as a discretionary remedy – RESTITUTION – total failure of consideration – recovery of contributions to a joint venture where joint venture agreement does not contemplate events which have occurred