Hawes & anor v Dean & ors [2013] NSWSC 745

Hawes & anor v Dean & ors [2013] NSWSC 745

Dean Investments' obligation to bear and discharge its rateable share of the Colonial loan was part of its obligation to transfer suite 301 unencumbered and was not excluded by the Gallwey Deed; Hawes Investments was therefore entitled to contribution of 35/65ths of the amount paid to discharge the loan. The Clydesdale Deed, properly construed, treated the nominees' purchase of the option land as a purchase by the Hawes Group for the purpose of the hypothetical sale mechanism, creating Project Revenue sufficient to require payment of the HPG Advances and the Clydesdale Fee, with quantification of the fee to be completed consistently with the reasons.

Jurisdiction
Australia
Judgment Date
12 June 2013
Procedural Posture
Equity Division Proceedings Concerning Contribution, Rectification, Winding Up and Contractual Cross Claims / Principal Judgment After Hearing; Parties Directed to Bring in Short Minutes
Outcome
Parties directed to bring in short minutes. Hawes Investments succeeded on contribution; HPG and Hawden Constructions were to be wound up subject to formal requirements; HPG and Dean succeeded on liability for the HPG Advances and Clydesdale Fee; abandoned Warrawee and directors' loan account claims were to be...
Legal Topics
['contribution Between Joint Borrowers' 'rectification of Deed' 'just and Equitable Winding Up' 'construction of Settlement Deeds' 'limited Recourse Obligation' 'project Revenue and Profit Calculation']
['equity' 'corporations' 'contracts'] ['contribution Between Joint Borrowers' 'rectification of Deed' 'just and Equitable Winding Up' 'construction of Settlement Deeds' 'limited Recourse Obligation' 'project Revenue and Profit Calculation']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Contribution, Rectification, Winding Up and Contractual Cross Claims / Principal Judgment After Hearing; Parties Directed to Bring in Short Minutes

Legal Issues

  1. 1 ["Whether Hawes Investments' right to contribution after discharging the Colonial joint loan was excluded or modified by the Gallwey Deed." 'Whether the Gallwey Deed should be rectified if it failed to reflect the conventional basis of equality of assets and liabilities.' 'Whether HPG and Hawden Constructions should be wound up on the just and equitable ground.' 'Whether the Clydesdale Deed gave rise to Project Revenue requiring repayment of the HPG Advances and payment of the Clydesdale Fee.' 'How disputed Project Costs should be treated in quantifying the Clydesdale Fee.' "Whether abandoned Warrawee and directors' loan account cross-claims should result in judgment for the cross-defendants."]

Ratio Decidendi

Dean Investments' obligation to bear and discharge its rateable share of the Colonial loan was part of its obligation to transfer suite 301 unencumbered and was not excluded by the Gallwey Deed; Hawes Investments was therefore entitled to contribution of 35/65ths of the amount paid to discharge the loan. The Clydesdale Deed, properly construed, treated the nominees' purchase of the option land as a purchase by the Hawes Group for the purpose of the hypothetical sale mechanism, creating Project Revenue sufficient to require payment of the HPG Advances and the Clydesdale Fee, with quantification of the fee to be completed consistently with the reasons.

Court Disposition

Parties directed to bring in short minutes. Hawes Investments succeeded on contribution; HPG and Hawden Constructions were to be wound up subject to formal requirements; HPG and Dean succeeded on liability for the HPG Advances and Clydesdale Fee; abandoned Warrawee and directors' loan account claims were to be...

Orders

  • ['Direct that the parties bring in short minutes to give effect to this judgment.' 'Hawes Investments is entitled to judgment for $208,329, being 35/65ths of $386,896.90, with interest from 19 June 2007.' 'Subject to compliance with formal requirements, HPG and Hawden Constructions should be wound up and a...