27 Norton Street Pty Ltd v Famularo [2012] NSWSC 278

27 Norton Street Pty Ltd v Famularo [2012] NSWSC 278

The bulk of the evidence showed that the arrangement was for Mr Famularo to purchase one of the houses at 27 Norton Street by acquiring a company share granting occupancy rights, not a joint venture or partnership entitling him to 50% of profits from sale of the two shares. Mr Famularo did not pay half the acquisition and construction costs and Mr Paterson terminated the agreement, with exchange of contracts for sale of the 27 Norton Street share on 18 June 2010 being an unequivocal act consistent only with termination. Because Mr Paterson had not pleaded that relief from forfeiture did not apply to the deposit, it was too late to raise that issue. Mr Famularo was therefore entitled to...

Jurisdiction
Australia
Judgment Date
27 March 2012
Procedural Posture
Equity Division Proceedings Involving Cross Claims Concerning Payments for a Property Development and Unpaid Invoices / Principal Judgment After Hearing
Outcome
Judgment for Mr Famularo on the first cross-claim against Mr Paterson for refund of moneys paid and unpaid invoices, with interest; relief dependent on a joint venture or partnership and an account of profits was refused; the summons was to be dismissed; disposition of the second cross-claim and costs were reserved...
Legal Topics
['joint Venture' 'company Title Occupancy Rights' 'residential Dual Occupancy Development' 'termination of Contract' 'relief From Forfeiture' 'deposit Recovery' 'pleading Requirements' 'unpaid Invoices for Work Done' 'interest']
['equity' 'contract Law' 'property Law' 'restitution' 'civil Procedure'] ['joint Venture' 'company Title Occupancy Rights' 'residential Dual Occupancy Development' 'termination of Contract' 'relief From Forfeiture' 'deposit Recovery' 'pleading Requirements' 'unpaid Invoices for Work Done' 'interest']

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Procedural Posture

Equity Division Proceedings Involving Cross Claims Concerning Payments for a Property Development and Unpaid Invoices / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether payments made by John Famularo to Garth Paterson were contributions to a joint venture to develop 27 Norton Street or payments toward purchase of a share in 27 Norton Street Pty Ltd granting occupancy rights to one house.' 'Whether Mr Famularo was entitled to an account of profits from the sale of the two occupancy shares in the company.' 'Whether Mr Famularo was entitled to return of moneys paid, including the 10% deposit.' 'Whether Mr Paterson should be permitted to raise late submissions that the deposit was not recoverable.' 'Whether Mr Paterson communicated an election to terminate the contract.' 'Whether notice requiring performance within a reasonable time was required before termination.' 'Whether Mr Famularo was entitled to payment of unpaid invoices for glazing work.']

Ratio Decidendi

The bulk of the evidence showed that the arrangement was for Mr Famularo to purchase one of the houses at 27 Norton Street by acquiring a company share granting occupancy rights, not a joint venture or partnership entitling him to 50% of profits from sale of the two shares. Mr Famularo did not pay half the acquisition and construction costs and Mr Paterson terminated the agreement, with exchange of contracts for sale of the 27 Norton Street share on 18 June 2010 being an unequivocal act consistent only with termination. Because Mr Paterson had not pleaded that relief from forfeiture did not apply to the deposit, it was too late to raise that issue. Mr Famularo was therefore entitled to...

Court Disposition

Judgment for Mr Famularo on the first cross-claim against Mr Paterson for refund of moneys paid and unpaid invoices, with interest; relief dependent on a joint venture or partnership and an account of profits was refused; the summons was to be dismissed; disposition of the second cross-claim and costs were reserved...

Orders

  • ['Judgment on the first cross-claim against Mr Paterson for $794,223.90, being $66,028.90 for work done and $728,195.00 for refund of moneys paid to Mr Paterson, with interest at Supreme Court rates from 18 June 2010.' 'The parties are to be heard on an appropriate interest calculation and on costs.' 'The parties...