In the matter of ACT Land Pty Ltd (in liquidation) [2019] NSWSC 1860

Supreme Court New South Wales

Medium Neutral Citation: In the matter of ACT Land Pty Ltd (in liquidation) [2019] NSWSC 1860 Hearing dates: 17 April 2019 Decision date: 20 December 2019 Jurisdiction: Equity - Corporations List Before: Rees J Decision: 1. Judgment for the first plaintiff against the second and third defendants in the amount of $100. 2. Otherwise dismiss the first plaintiff's claim against the second, third and fourth defendants for damages, equitable damages and costs. 3. Otherwise dismiss the Originating Process filed on 9 August 2017. 4. Discharge Order 3 made by Black J on 25 June 2018, being an interlocutory injunction against the first defendant. Catchwords: JOINT VENTURES AND PARTNERSHIPS — Joint Venture Agreement — Agreement to conduct development business through special purpose vehicle — Where shares to be held equally between five joint venturers — Mechanism for unequal contributions to be reconciled — "Call" on share for further contribution — Purported forfeiture of shares after non-payment of call — Company in liquidation — No leave to proceed as shares have no value — Cause of action in contract only — Breach made out.

CONTRACT — Breach of contract — Joint Venture Agreement — Purported forfeiture of shares — Exclusion from joint venture vehicle — Breach made out — Alleged loss of share of profits of development — No evidence that venture would be profitable — Subsequent history of venture led to liquidation of company — No evidence that course would have been different but for breach — No loss established — Nominal damages awarded. Legislation Cited: Corporations Act 2001 (Cth), s 286 Supreme Court Act 1970 (NSW), s 68 Cases Cited: Bennett v Minister for Community Welfare (1992) 176 CLR 408 Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199 Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; [1986] HCA 81 Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460 Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 Fink v Fink (1946) 74 CLR 127 Golden Strait Corp v Nippon Yusen Kubishika Kaisha ("The Golden Victory") [2007] 2 AC 353; [2007] UKHL 12 Koufos v C Czarnikow Ltd ("The Heron II") [1969] 1 AC 350 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 McCrohon v Harith [2010] NSWCA 67 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Monarch SS Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196 Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516 Smith New Court Securities Ltd v Citibank NA [1997] AC 254 State of New South Wales v Stevens (2012) 82 NSWLR 106; [2012] NSWCA 415 The Owners of the Steamship "Mediana" v The Owners, Master and Crew of the Lightship "Comet" ("The Mediana") [1900] AC 113 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; [1988] HCA 44 Tweddle v Atkinson (1861) 1 B&S 393; (1861) 121 ER 762 United Dominions Corp Limited v Brian Pty Limited (1985) 157 CLR 1; [1985] HCA 49 Wenham v Ella (1972) 127 CLR 454 Texts Cited: JW Carter, Contract Law in Australia (7th ed. LexisNexis, 2018) Category: Principal judgment Parties: Amrollah Aghili (First Plaintiff) Zoran Sever (Second Plaintiff) Andrea Stodulka (Third Plaintiff)