Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd (No 2) [2021] NSWSC 1374

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd (No 2) [2021] NSWSC 1374

Relief may be granted under the slip rule or inherent jurisdiction to correct accidental slips, omissions or errors in the reasons or draft orders so long as they do not require a rehearing or impermissibly reargue decided issues. In these proceedings, only clear arithmetical or textual slips, true omissions of reasoning on issues properly raised by the parties before orders entered, or utility-driven declaratory relief, were granted. All other requests for variation or correction that would have required exercise of substantive discretion, or were attempts to re-argue matters fully ventilated at trial, were refused. Regarding unauthorised partnership/company dealings, findings and orders...

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 Sixth Cross Claim/first Cross Defendant to Eighth and Ninth Cross Claims: Broadway Plaza Pty Ltd; 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; 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; 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; 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; First Cross Defendant to Fourth Cross Claim: HWL Ebsworth; Second Cross Defendant to Eighth Cross Claim: Moustafa Sayour; Ninth Cross Defendant to Fifth Cross Claim/second Cross Defendant to Ninth Cross Claim: Matthews Street Pty Ltd; Plaintiff; First Cross Defendant to the Third Cross Claim: Sayour Holdings Pty Ltd atf Sayour 2 Family Trust; Third Cross Defendant to First Cross Claim: Konstructions Pty Ltd; 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 the Third Cross Claim: Yesmine Sayour
Jurisdiction
Australia
Judgment Date
28 October 2021
Procedural Posture
Civil (equity) Consequential Orders and Costs Applications Following Primary Judgment in Complex Multi Party Litigation / Post Judgment, Entering Final and Consequential Orders Including Costs After Principal Judgment, on Motions to Correct or Vary Orders and Outstanding Matters
Outcome
Amended orders made correcting arithmetical slips and omitted issues; majority of variations/refinements to principal judgment refused; final orders for relief and costs entered in multi-party proceedings; additional directions for winding-up, distribution of assets, and taxation reserve; orders on costs including...
Legal Topics
Partnership Dissolution and Accounting, Directors' Duties and Breach, Restitution and Unjust Enrichment, Contract Interpretation and Rectification, Professional Negligence, Costs—party/party Costs, Slip Rule, Inherent Jurisdiction/correction of Orders, Banker/customer Mandate Breaches, Fraud and Forgery in Corporate Context, Delegation of Authority, Estoppel and Acquiescence
Equity Commercial Law Corporations Law Banking Law Partnerships Restitution Partnership Dissolution and Accounting Directors' Duties and Breach +10 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 Sixth Cross Claim/first Cross Defendant to Eighth and Ninth Cross Claims

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

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

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

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

HWL Ebsworth

First Cross Defendant to Fourth Cross Claim

Moustafa Sayour

Second Cross Defendant to Eighth Cross Claim

Matthews Street Pty Ltd

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

Sayour Holdings Pty Ltd atf Sayour 2 Family Trust

Plaintiff; First Cross Defendant to the Third Cross Claim

Konstructions Pty Ltd

Third Cross Defendant to First 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 the Third Cross Claim

Procedural Posture

Civil (equity) Consequential Orders and Costs Applications Following Primary Judgment in Complex Multi Party Litigation / Post Judgment, Entering Final and Consequential Orders Including Costs After Principal Judgment, on Motions to Correct or Vary Orders and Outstanding Matters

Legal Issues

  1. 1 To what extent should final and consequential orders (including costs, accounting and corrective orders) be made in lengthy partnership and oppression proceedings after initial reasons for judgment?
  2. 2 When can a court vary or correct its reasons or orders (before orders are entered), including under the slip rule or inherent jurisdiction?
  3. 3 Were certain payments or dealings authorised and recoverable?

Ratio Decidendi

Relief may be granted under the slip rule or inherent jurisdiction to correct accidental slips, omissions or errors in the reasons or draft orders so long as they do not require a rehearing or impermissibly reargue decided issues. In these proceedings, only clear arithmetical or textual slips, true omissions of reasoning on issues properly raised by the parties before orders entered, or utility-driven declaratory relief, were granted. All other requests for variation or correction that would have required exercise of substantive discretion, or were attempts to re-argue matters fully ventilated at trial, were refused. Regarding unauthorised partnership/company dealings, findings and orders...

Court Disposition

Amended orders made correcting arithmetical slips and omitted issues; majority of variations/refinements to principal judgment refused; final orders for relief and costs entered in multi-party proceedings; additional directions for winding-up, distribution of assets, and taxation reserve; orders on costs including...

Orders

  • Amendments under slip rule: correction of $650,000 to $500,000, deletion/qualification of specific erroneous statements, and addition of omitted reasons on identified issues.
  • Broadway Proceedings: final judgment for $8,050.80 (plus interest) for Plaza against CBA on first cross-claim, with payment-sharing provision; judgment for Plaza against Investments for $774,892.04 (principal + interest) on second cross-claim; Matthews Street Pty Ltd to be wound up unless consensual sale; discharge...