Perricoota Boat Club Investments Pty Limited v Anthony Rupert Watson [2014] NSWSC 378

Supreme Court New South Wales

Medium Neutral Citation: Perricoota Boat Club Investments Pty Limited v Anthony Rupert Watson [2014] NSWSC 378 Hearing dates: 17 March 2014; 18 March 2014; 19 March 2014 Decision date: 19 March 2014 Jurisdiction: Equity Division Before: Young AJA Decision: Separate questions decided in favour of the plaintiff. Catchwords: CONTRACTS - commercial arrangements among adjoining landholders - some contracts rescinded after deposits paid - whether deposits to be refunded or to be considered in final accounting Cases Cited: United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; 157 CLR 1 Craney v Bugg [1971] 1 NSWLR 13 Nu-Line Constructions Pty Ltd v Fowler [2014] NSWCA 51 Category: Separate question Parties: Perricoota Boat Club Investments Pty Ltd (Plaintiff) Anthony Rupert Watson (1st Defendant) Hillington Valley Pty Ltd (2nd Defendant) Ozzie Erections Pty Ltd (3rd Defendant) Representation: Counsel: Mr W. Alstergren SC, Mr D. Briggs (Plaintiff) Mr M. Gunning (1st Defendant) Mr M. Pesman SC (2nd Defendant) No appearance (3rd Defendant) Solicitors: Bizlaw (Plaintiff) Dawes & Vary (1st Defendant) ERA Legal (2nd Defendant) No appearance (3rd Defendant) File Number(s): 2009/291115 Publication restriction: None

Judgment 1I have to decide three questions preliminary to all other issues in this case namely: (a)Did the Plaintiff pay the deposits as set out in paragraphs 10, 18 or alternatively 23A of the Second Further Amended Statement of Claim? (b)If yes to (a) above, was there a reconciliation agreement entered into by the Plaintiff, First Defendant and Second Defendant, the effect of which was to prevent the Plaintiff from claiming and/or the Defendants from repaying any deposits and/or damages claimed by the Plaintiff, until such a reconciliation was completed? (c)Were there partnerships or joint ventures known as the Deep Creek Marina Joint Venture and the Perricoota Marina Village Joint Venture as alleged in the First Defendant's Defence to the Second Further Amended Statement of Claim at paragraphs 18 and 20 and was the Plaintiff a member of any such partnership or joint venture? 2The matter was heard on 17 and 18 March 2014 Mr W Alstergren SC and Mr D Briggs of counsel appeared for the plaintiff. Mr Gunning of counsel appeared for the first defendant (Mr Watson) Mr Pesman SC appeared for the second defendant Hillington Valley Pty Ltd ("Hillington"). Although it filed a defence, the third defendant, Ozzie Erections Pty Ltd ("Ozzie") did not appear at the hearing. 3The hearing involved 1750 pages of document and receiving oral evidence from Mr Watson and the controllers of the other parties namely Mr Bares of Hillington and Mr Jarman of the plaintiff. Each was cross-examined. I do not consider that any of them was doing other than giving me his genuine recollection: nor was any of them adversely effected by cross examination. However the major difficulty in this case lies in the reconciliation of the contemporaneous documents with a recollection of the three men. 4In 2006 to 2009 the parties were interested in developing land at Moama which fronted the Murray River. Pursuant to this interest the parties entered into a number of contracts which, using the designation which the parties ascribed to them, were as follows.