Hebbel Constructions Pty Limited v Bitar Pty Limited [2017] NSWSC 917

Supreme Court New South Wales

Medium Neutral Citation: Hebbel Constructions Pty Limited v Bitar Pty Limited [2017] NSWSC 917 Hearing dates: 29 May 2017 – 2 June 2017 Date of orders: 04 July 2017 Decision date: 04 July 2017 Jurisdiction: Equity Before: Rein J Decision: See [58] – [59], [66], [71], [73], [79] and [99] Catchwords: PARTNERSHIPS AND JOINT VENTURES – plaintiff and defendant in partnership to build residential and commercial units – creation of partnership vehicle company to conduct the project development – request for Court dissolution and winding up of partnership – whether construction contract entered into by the parties and whether in force or abandoned – whether plaintiff is the builder of the project, as named in the construction contract, and entitled to recoup monies for construction costs – whether variations were made to the construction contract sum – whether payments claimed were established to have been made by the plaintiff and whether, to the extent so established, loans obtained by the plaintiff for the purpose of meeting construction costs are recoverable from the partnership pursuant to s 24(2) or s 24(3) of the Partnership Act 1892 (NSW) – issue of delay in completion of the project – plaintiff's lack of building license and impact of Home Building Act 1989 (NSW) raised – whether the joint expert appointed is no longer impartial because he was engaged in communication by the plaintiff's solicitor without the involvement of the defendant and therefore cannot act as a referee in the proceedings – whether a receiver and manager should be appointed – whether, pursuant to s 35(f) of the Partnership Act 1892 (NSW), the partnership should be dissolved – what questions and matters should the referee and receiver and manager determine Legislation Cited: Home Building Act 1989 (NSW) Partnership Act 1892 (NSW) Cases Cited: Gerard Cassegrain & Co Pty Ltd v Cassegrain; Cassegrain v Gerard Cassegrain & Co [2010] NSWSC 91 Stanton (WA) P/L v Vasquez Investments [2017] NSWSC 128 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Ryder v Frohlich [2004] NSWCA 472 Abignano Nominees Pty Ltd v Sheripeter Pty Ltd [2016] NSWSC 1378 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Rowlands v MacDonald [2002] NSWSC 282 Tate v Barry (1928) 28 SR (NSW) 380 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Hebbel Constructions Pty Limited (Plaintiff and First Cross Defendant) Bitar Pty Limited (First Defendant and First Cross Claimant) Hebbel Constructions Pty Ltd & Bitar Pty Limited (Partnership) (Second Defendant) Joseph Katter (Second Cross Claimant) Mansour Taouk (Second Cross Defendant) Representation: Counsel: F. Assaf (Plaintiff and Cross Defendants) P.E King & F. Sinclair (First Defendant and Cross Claimant)