Hawes & anor v Dean & ors [2013] NSWSC 1246 | Case summary

Set-Off 13The defendants submit that the liability of the first and second cross-defendants (Mr Hawes and Glenside) to the first cross-claimant (Mr Dean) in respect of the Clydesdale Fee should be set off against the liability of the second defendant Dean Investments to the second plaintiff Hawes Investments under the Gallwey Deed. The practical importance of this is that Mr Hawes and Glenside do not appear to have adequate resources to satisfy the judgment against them. (A similar submission is made in respect of costs, but the issue of principle is most clearly posed by the substantive liabilities). 14Dean Investments accepts that it cannot avail itself of the statutory right of set-off under (NSW) Civil Procedure Act 2005, s 21. It relies on an equitable set-off, submitting that it can show "some equitable ground" for being protected against its adversary's demand [cf Rawson v Samuel (1841) 41 ER 451, 458; Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439, 465], submitting that the countervailing liabilities are sufficiently closely connected that it would be inequitable for Hawes Investments to be permitted to enforce its claim against Dean Investments without making allowance for Mr Dean's claim against Mr Hawes and Glenside [cf Roadshow Entertainment Pty Ltd v ACN 053 006 269 Pty Ltd (1997) 42 NSWLR 462; Akari v Sole [2008] NSWSC 59, [52]]. 15It is not an essential requirement of an equitable set-off that the claim and counterclaim originate in the same contract. However, in this case the parties to the two liabilities sought to be set off are not the same. The parties to the Gallwey claim - Hawes Investments and Dean Investments - had no other role in the proceedings. The parties to the Clydesdale Fee claim - Mr Hawes and Glenside, and Mr Dean - were not parties to the Gallwey claim. 16Mutuality, though essential to set-off at law, is not an indispensable requirement of equitable set-off, and equity does not require that there be identity between the parties to the set-off and the parties to the action [Commonwealth Bank of Australia v Sidney Raper Pty Ltd [1975] 2 NSWLR 227, 255; Murphy v Zamonex Pty Ltd ]. While some cases have insisted on an identity of beneficial interests [N W Robbie & Co Ltd v Witney Warehouse Co Ltd [1963] 1 WLR 1324; [1963] 2 All ER 199; Felt and Textiles of New Zealand Ltd v R Hubrich Ltd (In Receivership) [1968] NZLR 716; Rendell v Doors and Doors Ltd (in liquidation) [1975] 2 NZLR 191], this is not essential, the fundamental test being that set-off will be permitted where it is inequitable for a creditor to take the benefit of a transaction without assuming the corresponding burden [Direct Acceptance Corporation Ltd (Receiver and Manager Appointed)(In Liquidation) v Lord (NSWSC, Giles J, 29 April 1993, unreported; Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439, 466-7]. An equitable ground for protection from a plaintiff's claim will be established where the defendant's set-off "goes to the root of or impeaches the title of" the plaintiff's claim, but also where the counter-claim is "so directly connected with the claim that it would be unjust to allow the plaintiff to recover without taking into account the defendant's counter-claim" [Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439, 465; AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705, Re Just Juice Corp Pty Ltd, James v Commonwealth Bank of Australia (1992) 37 FCR 445]. 17As recorded in the principal judgment, Mr Hawes and Mr Dean over a period of about 17 years together engaged in approximately 15 property development projects, all on the basis of equality of interest. There was no overarching partnership or joint venture agreement, and they undertook each project as a discrete venture. For that purpose, they utilised a variety of corporate and trust structures, which included Gallwey Pty Limited, Dean Investments as trustee of the Dean Family Trust, and Hawes Investments as trustee of the Hawes Family Trust. Mr Hawes' affidavit evidence included the following: The association between the interests of myself and my family on the one side and the interests of Mr Dean and his family on the other side was such that all entities and projects were subject to equal ownership and control. Until 2004 whenever there was an inequality of funds contributed interest was calculated and taken upon in the accounts. Until the breakdown of our business relationship it was the practice of Mr Dean and myself that each of us received equal fees and benefits, either directly or via our respective family members and entities. After 2004 the separation of management responsibilities began and where Mr Dean or I played a greater role in a specific project, a management fee was credited to that director or a family member or entity of that director. On some occasions proceeds from one project have been used to effect adjustments between the Dean interests and the Hawes interests in relation to another project in order to achieve overall equality. ... In addition to the entities jointly controlled by Mr Dean and myself, there are 2 family trusts. The trustee of the Hawes Family Trust is Hawes Investments Pty Ltd ('Hawes Trustee'). Neither Mr Dean nor any of his family have been directors of Hawes Trustee or beneficiaries of the Hawes Family Trust. Hawes Trustee is the second plaintiff in these proceedings. The trustee of the Dean Family Trust is T & B Dean Investments Pty Ltd ('Dean Trustee'). Neither I nor any of my family have been directors of Dean Trustee or beneficiaries of the Dean Family Trust. Dean Trustee is the second defendant in these proceedings. 18It will be recalled that, although there was no formal partnership agreement nor partnership tax returns, the properties at 301/118 Christie Street, St Leonards (owned by Dean Investments), 302/118 Christie Street (owned by Hawes Investments) and 14/366 Sydney Road Balgowlah (owned by Dean Investments and Hawes Investments as tenants-in-common in equal shares) were referred to as the "Hawden Investment Partnership". 19The Trust Deed of the Hawes Family Trust is not in evidence; but its financial statements as at 30 June 2008 are, and from them it can be ascertained that the beneficiaries included Mr Hawes, his wife Mrs Caroline Elizabeth Hawes, Timothy Douglas Hawes and Alexandra Peppi Hawes; the different balances of the beneficiary accounts point strongly to its being, as one would expect, a discretionary trust; and the apparent role of Mr Hawes (to the exclusion of Mrs Hawes) in the dealings and transactions described in the evidence point to the conclusion, as one would expect, that he practically controlled the trust and was the appointor, such that he had the ability to control the trustee and thereby cause the trust property to vest in himself [cf Kennon v Spry (2008) 238 CLR 366]. 20Although different corporate entities and trusts were involved in different developments, ultimately they were vehicles for the beneficial interests of Mr Dean and Mr Hawes (variously held, at their discretion, by members of their families or corporations associated with them). The current proceedings and claims arose out of the separation of the totality of their affairs. All the disputes litigated were aspects of the overall dissolution of their relationship. It is clear that in the negotiations of the separation arrangements, their respective interests were treated in substance as, on the one hand, the interests of Mr Dean, and, on the other, those of Mr Hawes. Whatever might have been their position as against the rest of the world, between themselves the Hawes interests and the Dean interests were treated as two equal beneficial interests, albeit that each was held through a number of vehicles. Essentially, Mr Hawes and Mr Dean each determined, at their discretion, what if any interest other members of his family might have, or what distribution they might receive. 21In those circumstances, it seems to me that there was an identity of underlying beneficial interests. Hawes Investments, as trustee of the Hawes Family Trust, is a vehicle that holds part of the Hawes interest in the ventures. It would be positively unjust to permit Hawes Investments to enforce the judgment in its favour against Dean Investments for the benefit of the Hawes interest, without requiring a set-off of the moneys due by Mr Hawes and Glenside (being Hawes vehicles) to Mr Dean as a result of his success on the cross-claim. It would be unjust to require one interest to account to the other, without imposing a reciprocal obligation on the other. 22For those reasons, the judgment in favour of Hawes Investments in respect of the Gallwey Deed and that in favour of Mr Dean in respect of the Clydesdale fee should be set off one against the other. The result is a net judgment in favour of Mr Dean against Mr Hawes and Glenside for the sum of $32,801.99 (inclusive of interest to 14 August 2013).

Costs 23Although the parties began by analysing the matter on an issue by issue basis, the starting point in considering the question of costs is the overall outcome of the proceedings. The overall result (once it is appreciated that the judgment for HPG in respect of the HPG Advances represents an adjustment in favour of the Dean interests of half of the judgment sum) was a net adjustment, in favour of the Dean interests and against the Hawes interests, of just under $300,000. However, in addition, the Dean interests failed to achieve a further net adjustment in their favour of $450,000 on their unsuccessful Warrawee Deed and differential drawings claims. 24Looked at broadly on the basis of the claim and cross-claim, the Hawes interest wholly succeeded on its claim. The Dean interest succeeded on the greater part of the cross-claim, but was unsuccessful in respect of the Warrawee Deed and differential drawings claims. That suggests that the Dean interest should pay the Hawes interest's costs of the claim, and the Hawes interest should pay the greater share, but not all, of the Dean interest's costs of the cross-claim. 25I next consider the matter on the issue by issue basis adopted by the parties. 26On the plaintiffs' claim under the Gallwey Deed, the second plaintiff Hawes Investments succeeded against the second defendant. It was not suggested that any cost consequence other than that the second defendant pay the second plaintiff's costs was, in principle, the appropriate outcome in that respect. 27On the plaintiffs' claims for the winding up of HPG and Hawden Constructions on the just and equitable ground, the first plaintiff succeeded. Although ultimately this relief was not opposed, the claims were originally defended, at the instance of and then by the first defendant Mr Dean, by leave under Corporations Act, s 237. In principle, Mr Dean should pay the first plaintiff's costs of the winding up proceedings until 7 February 2012 (when the defence of the winding-up application was abandoned), and thereafter the costs should be payable out of the assets of the companies. 28On HPG's cross-claim in respect of the HPG advances, HPG succeeded. Pursuant to the orders made by Ward J on 6 July 2010, Mr Dean gave an undertaking to bear the costs of prosecuting the derivative suit in the name of HPG personally. Corporations Act, s 242 relevantly provides as follows: 242. The Court may at any time make any orders it considers appropriate about the costs of the following persons in relation to proceedings brought or intervened in with leave under section 237 or an application for leave under that section: (a) the person who applied for or was granted leave; (b) the company; (c) any other party to the proceedings or application. An order under this section may require indemnification for costs. 29As Mr Dean has, pursuant to his undertaking, personally borne the costs of successfully prosecuting the HPG Advances claim for the benefit of HPG, it is appropriate that the corresponding costs order be in his favour personally. Indeed, it would be doubtful whether HPG, having itself incurred no costs, could recover costs, and inappropriate that it should do so (as should it do so, that would benefit the unsuccessful half-shareholder as to half, notwithstanding that it bore none of the costs directly or indirectly). 30On the cross-claim for the Clydesdale fee, Mr Dean succeeded and in principle Mr Hawes and Glenside should pay his costs. 31On the claim under the Warrawee Deed, brought by Dean on behalf of behalf of HPG, the cross-claimant failed. The claim was abandoned, after a late amendment which raised a new issue that had not previously been pleaded. The cross-defendants submit that, the cross-claim having failed in circumstances that amounted not to compromise but surrender to an irresistible defence, the cross-claimants ought to pay their costs of this claim. The cross-claimants submit that the defence having succeeded only by reason of a late amendment, the cross-defendants ought to pay their costs; they invoke what is said to be the principle that where defendants succeed only by a late amendment of the defence the successful defendant should be deprived of a costs order in its favour, and in addition should be ordered to pay the costs of the unsuccessful plaintiff [see Beoco Ltd v Alpha Laval Co Ltd [1995] QB 137, 154; Bonic v Pacific General Security Ltd [2009] NSWSC 1221, [14]; Harrington v Greenwood Grove Estate Pty Ltd (No 2) [2011] NSWSC 1598, [4]-[6]]. 32However, as I sought to explain in Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111, this principle has emerged chiefly in circumstances where a late amendment has achieved nominal success for the plaintiff but it can be said that the defendant was the "true victor". Moreover, the cases referred to above and in Waterman v Gerling illustrate that it is mainly applicable where it is a plaintiff, as distinct from a defendant, that has secured success on a late amendment, although, as was shown in Harrington v Greenwood Grove Estate, it has sometimes been applied in the case of late amendments by defendants. 33It needs also to be borne in mind that leave to amend was granted on terms that the hearing be adjourned and that the cross-defendants pay the cross-claimants costs thrown away by the adjournment on an indemnity basis forthwith, provisionally assessed in the sum of $25,000. To that extent, the cross-claimants have already been compensated for the costs and inconvenience occasioned by the late amendment. 34There is no good reason why the unsuccessful cross-claimants should recover their costs of bringing and maintaining a claim which ultimately failed and was misconceived (though how misconceived it was was not appreciated by either party until late). The fact that the defence that defeated it was not identified until late does not detract from this. Nor does the circumstance that the defence that was pleaded prior to the late amendment had apparently poor prospects. However, the late amendment does detract from the proposition that the successful cross-defendants should recover their costs. In my view, the appropriate outcome on this issue is that the successful cross-defendants be deprived of their costs on it, but not required to bear the unsuccessful cross-claimants' costs. Accordingly, in principle, on this issue there should be no order as to costs. 35On the differential drawings claim, the successful cross-defendants submitted that, as the claim was "doomed to fail" and never had any prospect of success, the unsuccessful cross-claimants should pay their costs of the indemnity basis. However, while the claim was a weak one, it was but one of a raft of issues litigated, and I do not think its prosecution involved such delinquency as to attract an indemnity costs order. 36While there are some risks of imprecision in the Court broadly apportioning costs, rather than leaving the attribution of costs to particular issues to a costs assessor, the benefits in terms of promoting the finalisation of litigious disputes and reducing the complexity of the assessment process usually favour adoption of such a course. Apportioning costs between issues is necessarily discretionary and impressionistic [James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296, 36; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385, [84]]. On such an approach - the parties though invited to do so did not adduce evidence to assist on this issue and made only the broadest submissions - I would attribute 35% of the costs of the proceedings as a whole to the plaintiffs' claim under the Gallwey Deed, on which the Hawes interest is prima facie entitled to costs; 5% to the winding up proceedings, on which the Hawes interest is prima facie entitled to costs; 40% to the cross-claim founded on the Clydesdale Deed for the HPG advances and the Clydesdale Fee, in respect of which the Dean interest is prima facie entitled to costs; 10% to the claim under the Warrawee Deed, in respect of which neither party is entitled to costs; and 10% to the differential drawings claim, in respect of which the Hawes interest is entitled to costs. On that approach, the overall result would be that the Hawes interest is entitled to costs of 50% of the proceedings, and the Dean interest to the costs of 40%, and the net result would be that the Dean interest should pay 10% of the Hawes interest's costs of the proceedings. 37However, one must not lose sight of the overall outcome of the proceedings, which favoured the Dean interest, and while it is correct that the Dean interest failed on a claim for a further net $450,000, that claim was almost entirely attributable to the Warrawee Deed claim, in respect of which I have concluded that in principle there should be no order. 38When one weighs all these considerations, it seems to me that the just result, having regard to the respective degrees of success of the parties and the time and effort attributable to the various issues on which they respectively succeeded and failed, and bearing in mind also that in substance the proceedings were for the dissolution of a joint venture, there should be no order as to costs (without disturbing any costs orders made to date). 39Accordingly, my orders are: (7)Order that the third defendant Hawden Property Group Pty Limited be wound up and that Mr John Vouris of Lawler Partners be appointed liquidator of the third defendant. (8)Order that the fourth defendant Hawden Constructions Pty Limited be wound up and that Mr John Vouris of Lawler Partners be appointed liquidator of the fourth defendant. (9)Give judgment that the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Ltd pay the second cross-claimant Hawden Property Group Pty Limited the sum of $534,187.23 (inclusive of interest of $190,187.23 to 14 August 2013). This judgment takes effect on 14 August 2013. (10)Give judgment that the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Ltd pay the first cross-claimant Trevor Laurence Dean the sum of $32,801.99 (inclusive of interest to 14 August 2013). This judgment takes effect on 14 August 2013. (11)Give judgment for the third cross-defendant Warr Pty Limited on the cross-claim brought against it by Trevor Laurence Dean on behalf of Hawden Property Group Pty Limited under the Warrawee Deed. (12)Give judgment for the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Limited on the cross-claim brought against them by Trevor Laurence Dean on behalf of Hawden Group Pty Limited in respect of their guarantee of the obligations of Warr Pty Limited under the Warrawee Deed. (13)Give judgment for the first cross-defendant David Richard Hawes on the cross-claim brought against him by Trevor Laurence Dean on behalf of Hawden Property Group Pty Limited in respect of interest on differential drawings. (14)No order as to costs, to the intent that each party bear its own costs.

Hawes & anor v Dean & ors

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