In the matter of Waterfront Investments Group Pty Limited (in liquidation) [2015] NSWSC 18

In the matter of Waterfront Investments Group Pty Limited (in liquidation) [2015] NSWSC 18

The contractual obligation in respect of BBX trade dollar payments was an obligation for delivery of a commodity, not a debt payable in Australian dollars. Breach by failure to deliver BBX trade dollars gives rise to a claim for damages, not a debt, and Plaintiffs failed to prove loss. An equitable lien does not arise for non-payment of a commodity. No uncommercial transaction under s 588FB was established as Waterfront received value at or above market value. As to AUD 350,000 for unit 1A unpaid, that gave rise to a debt in favour of Waterfront. Mr Jammal breached his fiduciary and statutory duties in appropriating AUD 131,000 and directing payment of AUD 348,974 to Platnum, and Platnum...

Parties
First Plaintiff: John Kukulovski; Second Plaintiff: Waterfront Investments Group Pty Ltd (in liq); First Defendant: Eddy Investments (NSW) Pty Ltd; Second Defendant: Edward Ahmajani; Third Defendant: NJ Investments (Aust) Pty Ltd; Fourth Defendant: Nicole Jammal; Fifth Defendant: Platnum Corporation Pty Ltd; Sixth Defendant: Samir Jammal; Seventh Defendant: National Australia Bank Limited
Jurisdiction
Australia
Judgment Date
05 February 2015
Procedural Posture
Principal Judgment / Final Judgment After Trial
Outcome
Judgment for Plaintiffs in part; orders reserved pending submission of short minutes of order addressing orders and costs.
Legal Topics
Construction of Contracts, Breach of Contract, Uncommercial Transactions, Directors' Duties, Fiduciary Duties, Statutory Duties Under Corporations Act, Accessorial Liability, Vendor's Lien, Damages, Accounting Profits, Equitable Compensation
Contract Corporations Equity Construction of Contracts Breach of Contract Uncommercial Transactions Directors' Duties Fiduciary Duties +6 more

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Parties

John Kukulovski

First Plaintiff

Waterfront Investments Group Pty Ltd (in liq)

Second Plaintiff

Eddy Investments (NSW) Pty Ltd

First Defendant

Edward Ahmajani

Second Defendant

NJ Investments (Aust) Pty Ltd

Third Defendant

Nicole Jammal

Fourth Defendant

Platnum Corporation Pty Ltd

Fifth Defendant

Samir Jammal

Sixth Defendant

National Australia Bank Limited

Seventh Defendant

Procedural Posture

Principal Judgment / Final Judgment After Trial

Legal Issues

  1. 1 Whether special conditions in contracts required payment of purchase price by BBX trade dollars and/or Australian dollars
  2. 2 Whether failure to deliver BBX trade dollars gave rise to a claim in debt or damages
  3. 3 Whether an equitable lien could be established for unpaid BBX trade dollar portion

Ratio Decidendi

The contractual obligation in respect of BBX trade dollar payments was an obligation for delivery of a commodity, not a debt payable in Australian dollars. Breach by failure to deliver BBX trade dollars gives rise to a claim for damages, not a debt, and Plaintiffs failed to prove loss. An equitable lien does not arise for non-payment of a commodity. No uncommercial transaction under s 588FB was established as Waterfront received value at or above market value. As to AUD 350,000 for unit 1A unpaid, that gave rise to a debt in favour of Waterfront. Mr Jammal breached his fiduciary and statutory duties in appropriating AUD 131,000 and directing payment of AUD 348,974 to Platnum, and Platnum...

Court Disposition

Judgment for Plaintiffs in part; orders reserved pending submission of short minutes of order addressing orders and costs.

Orders

  • Plaintiffs to bring in agreed short minutes of order to give effect to judgment and dealing with costs within 21 days or, in absence of agreement, respective draft short minutes and short submissions as to differences.