Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778

The court found various fees (Development Management Fee, Konstructions Fee, Zapphire Fee) and interest sums to be recoverable from specified cross-defendants, imposed joint and several liability in some cases, and concluded certain agency commissions and sums were properly retained. Some claims (such as proprietary claims against CBA) failed. The court ordered the parties to bring in short minutes of order to give effect to the judgment and to address any outstanding or omitted issues.

Parties
Plaintiff/first Cross Defendant to First Cross Claim/cross Defendant to Second Cross Claim/first Cross Defendant to Fifth Cross Claim/first Cross Defendant to Sixth Cross Claim/second Cross Defendant to Seventh Cross Claim/first Cross Claimant to Eighth Cross Claim: Broadway Plaza Investments Pty Ltd; Defendant/cross Claimant to First, Second and Fifth Cross Claims/cross Defendant to Third Cross Claim/second Cross Defendant to Eighth Cross Claim: Broadway Plaza Pty Ltd; Second Cross Defendant to First Cross Claim/second Cross Defendant to Fifth Cross Claim/cross Claimant to Seventh Cross Claim/third Cross Defendant to Eighth Cross Claim: Commonwealth Bank of Australia; First Cross Defendant to Fourth Cross Claim: HWL Ebsworth; Third Cross Defendant to Fifth Cross Claim/first Cross Defendant to Seventh Cross Claim/second Cross Claimant to Eighth Cross Claim: Fouad Deiri; Fourth Cross Defendant to Fifth Cross Claim/fourth Cross Defendant to Seventh Cross Claim/cross Claimant to Ninth Cross Claim: Deiri Nominees Pty Ltd; Fifth Cross Defendant to Fifth Cross Claim; Fifth Cross Defendant to Seventh Cross Claim: Combined Projects (Gibbons) Pty Ltd; Sixth Cross Defendant to Fifth Cross Claim; Sixth Cross Defendant to Seventh Cross Claim: Combined Property Investments Pty Ltd; Seventh Cross Defendant to Fifth Cross Claim; Seventh Cross Defendant to Seventh Cross Claim: Combined Projects (Redfern) Pty Ltd; Eighth Cross Defendant to Fifth Cross Claim/eighth Cross Defendant to Seventh Cross Claim: Combined Projects Holdings Pty Ltd; Ninth Cross Defendant to Fifth Cross Claim/second Cross Defendant to Ninth Cross Claim: Matthews Street Pty Ltd; Tenth Cross Defendant to Fifth Cross Claim; Cross Claimant to Sixth Cross Claim; Third Cross Defendant to Seventh Cross Claim: Deicorp Pty Ltd; Eleventh Cross Defendant to Fifth Cross Claim; Ninth Cross Defendant to Seventh Cross Claim: Combined Projects (Arncliffe) Pty Ltd; Second Cross Defendant to Eighth Cross Claim: Moustafa Sayour; Plaintiff; First Cross Defendant to Third Cross Claim: Sayour Holdings Pty Ltd atf Sayour 2 Family Trust; First Defendant/cross Claimant to First Cross Claim; Fourth Cross Defendant to Third Cross Claim: Combined Projects (Arncliffe) Pty Ltd; Second Defendant/second Cross Defendant to First Cross Claim; Cross Claimants to Third Cross Claim: Deiri Nominees Pty Ltd; Third Defendant/first Cross Defendant to First Cross Claim; Second Cross Claimant to Third Cross Claim: Fouad Deiri; Third Cross Defendant to First Cross Claim: Konstructions Pty Ltd; Second Cross Defendant to Third Cross Claim: Moustafa Sayour; Fourth Cross Defendant to First Cross Claim: Zapphire Investments Pty Ltd; Fifth Defendant to First Cross Claim: Deicorp Properties Pty Ltd; Sixth Cross Defendant to First Cross Claim/cross Claimant to Second Cross Claim: Deicorp Constructions Pty Ltd; Third Cross Defendant to Third Cross Claim: Yesmine Sayour
Jurisdiction
Australia
Judgment Date
14 December 2020
Procedural Posture
Principal Judgment / Final Judgment With Orders to Bring in Short Minutes to Give Effect to Reasons
Outcome
Mixed—various claims and cross-claims resolved for applicant and respondent parties, directions for final orders and costs submissions, some claims succeeded, some failed.
Legal Topics
Dissolution, Equitable Fraud, Sham Transactions, Bribes, Fiduciary Duties, Restitutionary Liability, Professional Negligence, Banks' Duties to Customer
Equity Partnerships and Joint Ventures Banking and Finance Restitution Occupations (solicitors) Dissolution Equitable Fraud Sham Transactions +5 more

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Parties

Broadway Plaza Investments Pty Ltd

Plaintiff/first Cross Defendant to First Cross Claim/cross Defendant to Second Cross Claim/first Cross Defendant to Fifth Cross Claim/first Cross Defendant to Sixth Cross Claim/second Cross Defendant to Seventh Cross Claim/first Cross Claimant to Eighth Cross Claim

Broadway Plaza Pty Ltd

Defendant/cross Claimant to First, Second and Fifth Cross Claims/cross Defendant to Third Cross Claim/second Cross Defendant to Eighth Cross Claim

Commonwealth Bank of Australia

Second Cross Defendant to First Cross Claim/second Cross Defendant to Fifth Cross Claim/cross Claimant to Seventh Cross Claim/third Cross Defendant to Eighth Cross Claim

HWL Ebsworth

First Cross Defendant to Fourth Cross Claim

Fouad Deiri

Third Cross Defendant to Fifth Cross Claim/first Cross Defendant to Seventh Cross Claim/second Cross Claimant to Eighth Cross Claim

Deiri Nominees Pty Ltd

Fourth Cross Defendant to Fifth Cross Claim/fourth Cross Defendant to Seventh Cross Claim/cross Claimant to Ninth Cross Claim

Combined Projects (Gibbons) Pty Ltd

Fifth Cross Defendant to Fifth Cross Claim; Fifth Cross Defendant to Seventh Cross Claim

Combined Property Investments Pty Ltd

Sixth Cross Defendant to Fifth Cross Claim; Sixth Cross Defendant to Seventh Cross Claim

Combined Projects (Redfern) Pty Ltd

Seventh Cross Defendant to Fifth Cross Claim; Seventh Cross Defendant to Seventh Cross Claim

Combined Projects Holdings Pty Ltd

Eighth Cross Defendant to Fifth Cross Claim/eighth Cross Defendant to Seventh Cross Claim

Matthews Street Pty Ltd

Ninth Cross Defendant to Fifth Cross Claim/second Cross Defendant to Ninth Cross Claim

Deicorp Pty Ltd

Tenth Cross Defendant to Fifth Cross Claim; Cross Claimant to Sixth Cross Claim; Third Cross Defendant to Seventh Cross Claim

Combined Projects (Arncliffe) Pty Ltd

Eleventh Cross Defendant to Fifth Cross Claim; Ninth Cross Defendant to Seventh Cross Claim

Moustafa Sayour

Second Cross Defendant to Eighth Cross Claim

Sayour Holdings Pty Ltd atf Sayour 2 Family Trust

Plaintiff; First Cross Defendant to Third Cross Claim

Combined Projects (Arncliffe) Pty Ltd

First Defendant/cross Claimant to First Cross Claim; Fourth Cross Defendant to Third Cross Claim

Deiri Nominees Pty Ltd

Second Defendant/second Cross Defendant to First Cross Claim; Cross Claimants to Third Cross Claim

Fouad Deiri

Third Defendant/first Cross Defendant to First Cross Claim; Second Cross Claimant to Third Cross Claim

Konstructions Pty Ltd

Third Cross Defendant to First Cross Claim

Moustafa Sayour

Second Cross Defendant to Third Cross Claim

Zapphire Investments Pty Ltd

Fourth Cross Defendant to First Cross Claim

Deicorp Properties Pty Ltd

Fifth Defendant to First Cross Claim

Deicorp Constructions Pty Ltd

Sixth Cross Defendant to First Cross Claim/cross Claimant to Second Cross Claim

Yesmine Sayour

Third Cross Defendant to Third Cross Claim

Procedural Posture

Principal Judgment / Final Judgment With Orders to Bring in Short Minutes to Give Effect to Reasons

Legal Issues

  1. 1 Whether various partnership/joint venture agreements existed and their terms
  2. 2 Whether fiduciary duties were breached by one or more parties
  3. 3 Whether certain transactions were shams or involved bribes

Ratio Decidendi

The court found various fees (Development Management Fee, Konstructions Fee, Zapphire Fee) and interest sums to be recoverable from specified cross-defendants, imposed joint and several liability in some cases, and concluded certain agency commissions and sums were properly retained. Some claims (such as proprietary claims against CBA) failed. The court ordered the parties to bring in short minutes of order to give effect to the judgment and to address any outstanding or omitted issues.

Court Disposition

Mixed—various claims and cross-claims resolved for applicant and respondent parties, directions for final orders and costs submissions, some claims succeeded, some failed.

Orders

  • Order that the parties, by 29 February 2021, bring in short minutes of order to give effect to these reasons, including as to costs, and any brief written submissions dealing with those orders, with a view to those orders being made in chambers, if possible.
  • Order that the parties, if they consider that it is necessary, address in those submissions why it is necessary for the Court to hear oral submissions in relation to the orders referred to in Order 1.