Camilleri v Kane [2020] NSWSC 447

Supreme Court New South Wales

Medium Neutral Citation: Camilleri v Kane [2020] NSWSC 447 Hearing dates: 24 April 2020 Date of orders: 24 April 2020 Decision date: 24 April 2020 Jurisdiction: Equity Before: Parker J Decision: See at [35] Catchwords: CIVIL PROCEDURE – hearings – separate hearing application – validity and enforceability of deed of settlement Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 28.2 Supreme Court Act 1970 (NSW), s 68 Cases Cited: Choras v Farmakidis [2020] NSWSC 367 Category: Procedural and other rulings Parties: Gerard Camilleri (First Plaintiff) Lauren Marie Camilleri (Second Plaintiff) David Stuart Charles Kane (First Defendant) Total Excavations & Demolition Pty Ltd (Second Defendant) Representation: Counsel: P Barham (First Plaintiff/Second Plaintiff) J Burnett (First Defendant/Second Defendant)

Solicitors: Hunt & Hunt (First Plaintiff/Second Plaintiff) Anderson Boemi Lawyers (First Defendant/Second Defendant) File Number(s): 2019/51365 Publication restriction: Nil

Judgment – EX TEMPORE JUDGMENT Revised and reissued 28 April 2020 1. Before the Court is an application by way of notice of motion seeking the separate and preliminary determination of certain claims in these proceedings. The application is brought under Uniform Civil Procedure Rules 2005 (NSW), r 28.2. 2. The first plaintiff in the proceedings, Gerard Camilleri, and the second plaintiff, Lauren Camilleri, are husband and wife. The proceedings arise out of business dealings between them and the first defendant, David Stuart Charles Kane. The second defendant, Total Excavation and Demolition Pty Ltd ("TED") is a company which was also involved in those dealings. 3. Relevantly, for the purpose of these proceedings, the dealings principally focussed on a project to develop a property at Dural in north-west Sydney. The Camilleris and Mr Kane are the registered proprietors of the property. Mr Kane holds an 80 per cent share and the Camilleris each hold 10 per cent. 4. As I have mentioned, the parties also had dealings with respect to TED. That company was incorporated in 2013. Mr Camilleri and Mr Kane each held half of the two shares on issue. Mr Camilleri and Mr Kane were also directors. But in October 2015, Mr Kane lodged an ASIC form notifying the purported removal of Mr Camilleri as a director and the purported transfer of his shareholding to Mr Kane. 5. Mr Camilleri, through his legal representatives, denied that he had resigned as a director or transferred his shareholding. 6. At around the same time the parties fell into a wider dispute, concerning the progress of the development more generally, and in particular their obligations to finance and complete it. In February 2016, Mr Camilleri commenced proceedings against Mr Kane in the Equity Division of this Court. After six months or so, however, the parties began to negotiate a settlement of the dispute which would see the proceedings being resolved. 7. Eventually in November 2016 the form of a deed, styled the Deed of Settlement and Release, was agreed between the solicitors acting for the parties. That Deed provided for payments to be made between the parties and for the transfer of the Dural property into the ownership of the Camilleris. It also provided for certain property to be transferred by TED to the Camilleris, and for Mr Camilleri to surrender his shareholding in the company. 8. The Deed provided, in the usual way, for it to be executed in counterpart form, and went on to provide that it would come into effect when both parties had executed and handed over their counterparts. Mr Kane executed a counterpart on behalf of himself and TED, and it was handed over by the solicitor acting for them on 14 November 2016, but the Camilleris did not execute their counterpart at that point. 9. On 5 December the solicitor acting for Mr Kane and TED wrote to the Camilleris' solicitor seeking to have them execute and return the Deed within two days. There was no immediate response to this request, but on 4 January the Camilleris' solicitor wrote back, raising an issue about alleged contamination of the property and seeking to introduce changes to the Deed to deal with that issue. The letter also stated that the Camilleris' position was that the Deed was not yet binding, because it had not been executed and returned by then. 10. So far as the evidence goes in these proceedings, there was no response to that letter. Then in March there was a change of solicitors by the Camilleris and a change of tack. On 10 March 2017 the Camilleris' new solicitor wrote to the solicitor for Mr Kane and TED, enclosing the Camilleris' executed counterpart of the Deed and asking that it be completed in accordance with its terms. There was no immediate response, but Mr Kane and TED ultimately took the position that the Deed, if it was ever binding, is no longer binding, and that resulted in the institution of these proceedings.