Hawes v Dean [2014] NSWCA 380

Hawes v Dean [2014] NSWCA 380

The Court held that purchases by CPPL and 358PL constituted purchases by the 'Hawes Group' under the Clydesdale deed, as nominee arrangements were contemplated by that agreement and the benefits so derived accrued to Mr Hawes. The words 'proceed with construction' did not impose a separate precondition to the fee obligation under clause 5.2, as context and the seven-day payment period under clause 7 indicated otherwise. The equitable set-off ordered at first instance was reversed due to a lack of mutuality, insufficient connection between the obligations, and distinct parties and contracts. The Court also upheld the primary judge's approach to project cost calculation and dismissed...

Jurisdiction
Australia
Judgment Date
07 November 2014
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Equity Division of Supreme Court of NSW
Outcome
Appeal allowed in part; cross-appeal dismissed.
Legal Topics
['contract Interpretation' 'commercial Contracts' 'equitable Set Off' 'costs']
['contracts' 'civil Procedure' 'equity'] ['contract Interpretation' 'commercial Contracts' 'equitable Set Off' 'costs']

Case Brief

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Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Equity Division of Supreme Court of NSW

Legal Issues

  1. 1 ["Whether purchase of land by CPPL and 358PL constituted purchase by the 'Hawes Group' under the Clydesdale deed;" 'Whether proceeding with construction was a precondition for the operation of clause 5.2 of the Clydesdale deed;' 'Whether the equitable set-off ordered by the primary judge was proper;' 'Whether costs were rightly determined at first instance;' 'Whether calculation of the fee under clause 4(b) wrongly included/excluded particular project costs.']

Ratio Decidendi

The Court held that purchases by CPPL and 358PL constituted purchases by the 'Hawes Group' under the Clydesdale deed, as nominee arrangements were contemplated by that agreement and the benefits so derived accrued to Mr Hawes. The words 'proceed with construction' did not impose a separate precondition to the fee obligation under clause 5.2, as context and the seven-day payment period under clause 7 indicated otherwise. The equitable set-off ordered at first instance was reversed due to a lack of mutuality, insufficient connection between the obligations, and distinct parties and contracts. The Court also upheld the primary judge's approach to project cost calculation and dismissed...

Court Disposition

Appeal allowed in part; cross-appeal dismissed.

Orders

  • ['Set aside order (4) made in the Equity Division on 3 September 2013 and in lieu thereof make orders (4) and (4A): (4) Give judgment that the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Ltd pay the first cross-claimant Trevor Laurence Dean the sum of $357,188...