Gedala Pty Ltd v Gusdote Pty Ltd
[2010] QSC 482
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- Unreported Judgment
- Gedala Pty Ltd v Gusdote Pty Ltd[2010] QSC 482
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Gedala Pty Ltd v Gusdote Pty Ltd[2010] QSC 482
Gedala Pty Ltd v Gusdote Pty Ltd[2010] QSC 482
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 26 November 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 November 2010 |
JUDGE: | Margaret Wilson J |
ORDER: | The Court declares that:
Further, the Court orders that:
|
CATCHWORDS: | REAL PROPERTY – GENERAL PRINCIPLES – proceeds of sale – where joint venture between plaintiffs and defendant for development of land – where land acquired in name of defendant – where defendant sold land to the plaintiffs – where plaintiffs sold land to unrelated third party – where defendant in voluntary administration – where administrator gave written consent to continuation of proceeding – where no appearance by administrator – where no appearance by anyone seeking to prosecute the counterclaim – whether plaintiffs established claim pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 476 – whether plaintiffs entitled to net proceeds of sale Uniform Civil Procedure Rules 1999 (Qld), r 476 |
COUNSEL: | AM Musgrave for the plaintiffs No appearance by the defendant |
SOLICITORS: | MacDonnells Law for the plaintiffs No appearance by the defendant |
HER HONOUR: The plaintiffs' claim arises out of a joint venture agreement between the plaintiffs and the defendant for the development of land comprising part of the Willows Golf Course at Thuringowa in North Queensland. There was no joint venture vehicle and the land was acquired in the name of the defendant.
The first plaintiff has at all material times been controlled by John Doyle and the second plaintiff by his brother Edward Doyle. They carry on business in partnership as Doyle Built Homes.
At all material times the defendant was controlled by Don Matheson. Recently it went into voluntary administration. The administrator has given his written consent to the continuation of this proceeding against the company. There was no appearance today by the administrator; nor was there an appearance by anyone seeking to prosecute the counterclaim.
Pursuant to Rule 476 of the Uniform Civil Procedure Rules 1999 (Qld) the plaintiffs must establish their claim, and they have done so by affidavit evidence. The plaintiffs are also entitled to an order dismissing the counterclaim against them.
Counsel took me through the affidavit evidence. It is clearly and adequately summarised in his written submissions, which I respectfully adopt. I am satisfied that the joint venture was for the development of stage 1 of the golf course. This was pursuant to a joint venture agreement made on or about 18 July 2002. Pursuant to that agreement stage 1 was subdivided into 33 lots, the last of them being sold in September 2003. Thereupon, the joint venture terminated.
There is another parcel of land referred to in the proceeding as "the unit land" or "stage 2 of the golf course development". The defendant contended that it came to be included within the scope of the joint venture. I think this is very doubtful, but even if that did happen, by 30 June 2003 it was no longer within the scope of the joint venture.
By a contract made on or about 14 July 2003 the defendant sold the unit land to the plaintiffs. That contract was completed and a transfer was registered on 1 August 2003.
While the joint venture subsisted, there were loan accounts in its books. At the time it came to an end in September 2003, the defendant owed the joint venture $769,038.66. The joint venture owed the plaintiffs $200,144 (i.e., $100,072 each).
The plaintiffs sold the unit land to an unrelated third party for $2.1 million. The transaction was settled on 10 September 2007, the net proceeds of sale being $1,980,195.22. The plaintiffs had agreed with the defendant to deposit one-third of the net proceeds in MacDonnells Law Trust Account, to be distributed in accordance with the consent of the plaintiffs and the defendant or an order of the Supreme Court.
Accordingly, $660,065.08 was deposited into that trust account. With interest, the amount of the deposit grew to $758,359.05. I am satisfied that the plaintiffs are entitled to those moneys in equal shares.
Counsel has prepared a draft judgment by which the Court makes certain declarations and orders with respect to the payment of moneys. I am prepared to make declarations and orders in terms of that draft, which I shall initial and have placed with the papers.