HUNT & Anor v KALLINICOS & Ors [2009] NSWCA 5 (29 January 2009)

Last Updated: 10 February 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
HUNT & Anor v KALLINICOS & Ors [2009] NSWCA 5


FILE NUMBER(S):
40054 of 2008

HEARING DATE(S):
27 October 2008

JUDGMENT DATE:
29 January 2009

PARTIES:
Peter Anthony HUNT (First Appellant)
Randall Pty Limited (Second Appellant)
Peter Kallinicos (First Respondent)
Chapen Pty Ltd (Second Respondent)
Peter Kallinicos


JUDGMENT OF:
Giles JA Bell JA Handley AJA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 1033 of 2003

LOWER COURT JUDICIAL OFFICER:
Brereton J

LOWER COURT DATE OF DECISION:
18 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWSC 149

COUNSEL:
Appellants: B De Buse
Respondents: G K Burton SC

SOLICITORS:
Appellants: McCabe Terrill Lawyers
Respondents: Konstan Lawyers

CATCHWORDS:
CONTRACTS – PENALTY – PROVISION FOR ACCELERATION OF EXISTING DEBT NOT PENALTY
PARTNERSHIP – SHARE OF FORMER PARTNER – EQUITABLE DEBT ALTHOUGH NOT ASCERTAINED

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Foran v Wight [1989] HCA 51; (1989) 168 CLR 385
O’Dea v Allstates Leasing System (WA) Pty Ltd [1983] HCA 3; (1983) 152 CLR 359
Acron Pacific Ltd v Offshore Oil NL [1985] HCA 63; (1985) 157 CLR 514
Thompson v Hudson (1869) LR 4 HL 1
Wallingford v Mutual Society (1880) 5 App Cas 685
Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656
Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373
Siqueira v Noronha [1934] HC 332
Firm Bishun Chand v Seth Girdhari Lal (1934) LR 61 Ind App 273
FCT v Everett [1980] HCA 6; (1980) 143 CLR 440
Pathirana v Pathirana [1967] 1 AC 233
Webb v Stenton (1883) 11 QBD 518
Target Holdings Ltd v Redferns [1995] UKHL 10; [1996] AC 421
Youyang Pty Ltd v Minter Ellison [2003] HCA 15; (2003) 212 CLR 484
Cameron v UBS AG (2000) 2 VR 108 CA
Zenith Engineering Pty Ltd v Queensland Crane & Machinery Pty Ltd [2001] 1 Qd R 114

TEXTS CITED:


DECISION:
Appeal dismissed with costs, including the costs of the leave application



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40054/08

GILES JA

BELL JA

HANDLEY AJA

Friday 30 January 2009

Peter Anthony HUNT & Anor v Peter KALLINICOS & Anor

Proceedings by a former partner or joint venturer for the taking of accounts and the ascertainment of his share were compromised at a mediation. The Heads of Agreement signed on 31 August 2007, which were stated to be legally binding, provided for “the Settlement Sum” of $900,000 to be paid by instalments of $450,000 on 4 February 2008 and 7 September 2009. Clause 14 provided that if payment was not made within 3 days of the due date the plaintiffs could enter judgment for $900,000 or the amount that remained outstanding. The defendants failed to pay the first instalment within 3 days of the due date and the plaintiffs moved for leave to enter judgment for $900,000. The defendants argued that the provision for acceleration on default was a penalty but Brereton J found for the plaintiffs and entered judgment for $900,000. The defendants appealed against the judgment for of the second instalment.

HELD dismissing the appeal:

(1) A line of authority in England and Australia established that a clause providing for accelerated payment of an existing debt on default was not a penalty: O’Dea v Allstates Leasing System (WA) Pty Ltd [1983] HCA 3; (1983) 152 CLR 359; Acron Pacific Ltd v Offshore Oil NL [1985] HCA 63; (1985) 157 CLR 514 applied;

(2) The plaintiffs’ share of the partnership or joint venture, although unascertained prior to the Heads of Agreement, was an existing equitable debt;

(3) The defendants’ obligation to pay the debt was not created by the Heads of Agreement but arose from the past dealings of the parties;

(4) Under the Heads of Agreement the Settlement Sum was a present ascertained debt payable in the future;

(5) The penalty doctrine did not apply.

ORDER

Appeal dismissed with costs, including the costs of the leave application.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40054/08

GILES JA

BELL JA

HANDLEY AJA

Friday 30 January 2009

Peter Anthony HUNT & Anor v Peter KALLINICOS & Anor

JUDGMENT

1 GILES JA: I agree with Handley AJA.

2 BELL JA: I agree with Handley AJA.

3 HANDLEY AJA: This appeal arises from the mediated settlement of proceedings brought by the respondents (plaintiffs) against the appellants, the first and third defendants, (defendants) and others for the taking of the accounts of alleged partnerships or joint ventures. These related to property dealing and development, and the transactions relied on were pleaded in the further amended statement of claim of 23 January 2006 (CAB 1-10) (the statement of claim). They related to properties in Annandale, Balmain, Rozelle, Newtown, Leichhardt and Surry Hills identified in the statement of claim (CAB 3-9), and the draft Deed of Release prepared by the solicitors for the defendants (CAB 49).

4 The transactions occurred between February 1994 and March 2003 (CAB 3-9). Most were effected through the companies which were joined as the third, fourth and fifth defendants alleged to be trustees for the partnership or joint venture (CAB 4-5). The statement of claim alleged that the agreements had been terminated in November 2001. The proceedings were commenced by summons on 8 January 2003.

5 The defence filed on 20 February 2006 (CAB 14-21) denied the partnership, but admitted that a number of the properties referred to in the statement of claim had been purchased for joint ventures. In other cases this was denied, and in one case it was said there had been a full accounting (CAB 19).

6 The defence referred to a statement of cross-claim which was not included in the appeal book presumably because it was not relevant and may be disregarded. The mediation, which was conducted by the Hon Robert Hunter QC on 31 August 2007, culminated in the execution of Heads of Agreement (CAB 39-43) (the agreement).

7 Clause 1 stated that the document was legally binding, but cl 3 provided that a deed incorporating the agreement “and any other terms necessary for or incidental to the performance of the Heads of Agreement” would be prepared and executed within 14 days. The time for performance of these obligations was not expressed to be of the essence.

8 The agreement either fell within the first of the three classes identified in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, 360, or more probably within the fourth class identified by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622, 628; affirmed by this Court (1986) 40 NSWLR 631. In either event the agreement was legally binding. The contrary was not argued and it was not suggested that there was invalidating uncertainty.

9 Clause 4 (CAB 40-1) provided that the defendants:

“... shall pay the sum of $900,000 to Kallinicos as follows:

(a) the sum of $450,000 by close of business on 4 February 2008;

(b) the sum of $450,000 by close of business on 7 September 2009.”

10 Clause 5 provided that the defendants’ liability should be joint and several and that time for payment was of the essence. Clause 6 provided for mutual releases to take effect “on and from payment in full of the Settlement Sum”. Clause 9 provided for the transfer to the first defendant or his nominee of the shares held by the first plaintiff and his wife in the fourth and fifth defendants. Clause 14 provided:

“In the event that payment is not made within 3 business days of the due date, the plaintiffs may enter judgment for the sum of $900,000 or such balance is (sic) at that time outstanding and the first and third defendant consent to entry of such judgment.”

11 Clauses 15, 16 and 17, which are not otherwise material, refer to payment in full of “the Settlement Sum”, security for its payment, and another step open to the plaintiffs on “the failure of [the defendants] to pay a part of the Settlement Sum in accordance with the instalment arrangement”.

12 The defendants’ obligation to pay the Settlement Sum in the two instalments provided for in cl 4 was not expressed to be interdependent with the obligations of the first plaintiff and his wife in cl 3 to execute the Deed and in cl 9 to transfer their shares in the fourth and fifth defendants to the first defendant or his nominee. One of the arguments in support of the appeal was that this was necessarily implied.

13 On 19 September 2007 the defendants’ solicitors sent to the plaintiffs’ solicitors a draft deed of release and a draft mortgage together with share transfers, forms of resignation as director and draft circulating resolutions. No reply was received prior to 4 February 2008 when the first instalment of $450,000 became payable. When it was not paid within the further 3 days provided for in cl 14 the plaintiff applied on notice for judgment to be entered for $900,000 pursuant to that clause.

14 The application was heard by Brereton J on 18 February 2008. His Honour gave extempore reasons and entered judgment in favour of the plaintiffs for $900,000. A stay was granted preventing execution of the judgment for more than $450,000. This has been paid and the appeal was limited to the second amount of $450,00.

15 Mr De Buse, counsel for the appellants, had two points. The first was that the defendants’ obligation to pay was interdependent with and conditional on prior or simultaneous performance by the plaintiffs of their obligations to execute and deliver the Deed of Release and the share transfers stipulated for in cll 3 and 9 of the agreement. The second was that the provision for acceleration in cl 14 was void and unenforceable as a penalty because the benefit to the plaintiffs of the acceleration bore no relationship to the damage they suffered as a result of the late payment of the first instalment and was totally disproportionate.

16 A purchaser’s obligation to pay for the transfer of real or personal property and the vendor’s obligation to make that transfer are normally dependent and concurrent: McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457, 475-6; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 417, 433, 450-1, 455. However, as Dixon J said in the earlier case at 476, quoting from a judgment of Sir John Salmond:

“The general rule ... that in an executory contract for the sale of land the vendor cannot sue for the price is excluded whenever a contrary intention is shown by the express terms of the contract. And it seems established by authority that a contrary intention is sufficiently shown in all cases in which by the express terms of the contract the purchase money or any part thereof is made payable on a fixed day, not being the agreed day for the completion of the contract by conveyance. In all such cases the purchase money or such part thereof becomes, on the day so fixed for its payment, a debt immediately recoverable by the vendor irrespective of the question whether a conveyance has been executed and notwithstanding the fact that the purchaser may have repudiated the contract. Notwithstanding such repudiation the vendor is not bound to sue for damages or specific performance, but may recover the agreed purchase money.”

17 That is this case. The agreement makes the instalments payable on fixed days which were not the days for performance of the plaintiffs’ obligations under cll 3 and 9. The argument for an implied term making the obligations mutually dependent and concurrent fails because it would be inconsistent with the express terms of the agreement.

18 The argument that cl 14 is void or unenforceable as a penalty also fails because a line of authority here and in England has established, at least in this Court, that a clause providing for the acceleration of payment of an existing debt on default in payment of an instalment is not a penalty. In O’Dea v Allstates Leasing System (WA) Pty Ltd [1983] HCA 3; (1983) 152 CLR 359, 366 Gibbs CJ said:

“... if a sum of money is payable by instalments, and it is provided that in the event of one instalment not being punctually paid the whole sum shall immediately become payable, the acceleration of payment is not a penalty.”

See to the same effect per Wilson J at 380, and Brennan J at 386.

19 Later in Acron Pacific Ltd v Offshore Oil NL [1985] HCA 63; (1985) 157 CLR 514, 518 Mason ACJ, Wilson, Brennan and Dawson JJ said:

“Of course there is no penalty if the provisions of the moratorium deed simply grant an indulgence for the payment of a debt that is due and payable.”

20 These statements of principle are consistent with decisions of the House of Lords in Thompson v Hudson (1869) LR 4 HL 1, 15-16; and Wallingford v Mutual Society (1880) 5 App Cas 685. In the latter case Lord Selborne LC said 696:

“These mortgage bonds were given to secure the £6,000 ... and also the premiums, which would become due by instalments according to the rules of the society; and the payment of which under those rules was liable to be accelerated, if any of the instalments were not punctually paid. I cannot think that such an acceleration of payments has anything in common with a penalty. It was a contract for certain payments which were debita in praesenti although solvenda in futuro; and, being such it is consistent both with principle and with authority to hold, that if the party who ought to have paid them, or any of them, at the proper time failed to do so, the default was his own, and the time might lawfully be accelerated for the other payments which were originally deferred.”

21 See to the same effect per Lord Hatherley at 702, per Lord Blackburn at 705-6 and per Lord Watson at 710.

22 Given these decisions this Court is bound to hold that the penalty doctrine does not apply where a debt that is due is made payable by instalments with a provision for acceleration on default. The principle that a penalty is determined as a matter of substance not form, even when combined with the dicta of Deane J in O’Dea’s case at 403-4, and Acron Pacific at 520-1; and the reservations in Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; (2005) 224 CLR 656 at paras [12] and [31] cannot displace the line of authority referred to.

23 The remaining question is whether “the Settlement Sum” of $900,000 was due when the agreement was signed. Clause 4 provided in terms for payment of the Settlement Sum of $900,000, albeit by instalments at future dates. Under the agreement this became a debt that was due although not yet payable: Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373, 382-3. There was a present obligation to pay a sum of money in the future: ibid at 384.

24 The agreement constituted an account stated for consideration and for this reason also it gave rise to an immediate debt: Siqueira v Noronha [1934] HC 332; Firm Bishun Chand v Seth Girdhari Lal (1934) LR 61 Ind App 273, 284-5.

25 The plaintiffs sued their alleged partners for an accounting on the winding-up of their partnership and joint ventures. They claimed to have an equitable chose in action for the balance that would be found payable pursuant to that accounting: FCT v Everett [1980] HCA 6; (1980) 143 CLR 440, 446-7.

26 Where the alleged assets are either held by, or have been received and applied by the defendants a judgment in favour of the plaintiffs following a final accounting will require payment of the judgment debt to the plaintiffs: Pathirana v Pathirana [1967] 1 AC 233. Such a judgment gives effect to an antecedent obligation in the nature of an equitable debt. The defendants would be personally liable to their partners as a result of breaches of duty or defaults in performance of their obligations as a partner: compare Webb v Stenton (1883) 11 QBD 518 CA, 530. The position where a beneficiary who is absolutely entitled recovers judgment against the trustee for breach of trust is the same: Target Holdings Ltd v Redferns [1995] UKHL 10; [1996] AC 421, 434-5; Youyang Pty Ltd v Minter Ellison [2003] HCA 15; (2003) 212 CLR 484, 499, 509.

27 Thus the defendants’ obligation to pay the Settlement Sum did not spring from the agreement but from past dealings between the parties: Cameron v UBS AG (2000) 2 VR 108 CA. The decision of the Queensland Court of Appeal in Zenith Engineering Pty Ltd v Queensland Crane & Machinery Pty Ltd [2001] 1 Qd R 114 does not support a similar conclusion in this case.

28 The plaintiffs’ claim as pleaded was to an equitable debt that became due on dissolution although it would not be payable until ascertained. It was a claim to an existing debt which was ascertained and became payable by instalments under the terms of the agreement. The authorities previously referred to establish that the penalty principle has no application in such a case.

29 The appeal therefore fails and should be dismissed with costs, including costs of the leave application.

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LAST UPDATED:
2 February 2009