Napier Constructions Pty Ltd (Subject to DOCA)(Receivers & Managers Appointed) -v- Christopher Honey (in his capacity as Joint and Several Receiver and Manager of Napier Constructions Pty Ltd) [2012] NSWSC 762

Supreme Court New South Wales

Medium Neutral Citation: Napier Constructions Pty Ltd (Subject to DOCA)(Receivers & Managers Appointed) -v- Christopher Honey (in his capacity as Joint and Several Receiver and Manager of Napier Constructions Pty Ltd) [2012] NSWSC 762 Hearing dates: 27 June 2012 Decision date: 06 July 2012 Jurisdiction: Equity Division - Technology and Construction List Before: Hammerschlag J Decision: See paragraphs 53, 54 and 55 Catchwords: CONTRACT - Construction of deed recording agreement as to the basis upon which a party would assist companies and their receivers in prosecuting proceedings against certain third parties - where another party (the bank) makes available funds to facilitate prosecution of proceedings and is owed money under secured facilities - construction of formula for the sharing of settlement proceeds (between the companies and the bank) where provision is capable of two meanings - construction of clauses providing for the taking into account of interest Cases Cited: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 International Air Transport Association v Ansett Australia Holdings Ltd and others (2008) 234 CLR 151 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Western Export Services Inc v Jireh International Pty Ltd [2010] NSWSC 622 Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Westpac Banking Corporation v Tanzone Pty Limited (2000) 9 BPR 17,521 Category: Principal judgment Parties: Napier Constructions Pty Ltd (Subject to DOCA) (Receivers and Managers Appointed) ACN 121 046 679 - Plaintiff Christopher Honey (in his capacity as joint and several receiver and manager of Napier Constructions Pty Ltd) - First Defendant James Thackray (in his capacity as joint and several receiver and manager of Napier Constructions Pty Ltd) Representation: A.P.P. Lo Surdo SC with E.M. Peden - Plaintiff P. J. Dowdy - Defendants Clamenz Evans Ellis Lawyers - Plaintiff Henry Davis York - Defendants File Number(s): 2011/373741