Alanbert Pty Ltd v Bulevi Pty Ltd - [2002] NSWSC 936

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 936

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 8 October 2002

JUDGMENT DATE: 8 October 2002

PARTIES :

Alanbert Pty Limited (P1)
Bernoth Realty Pty Ltd (P2)
Bertram Bernoth (P3)
Bulevi Pty Ltd (D1)
Davhand Pty Ltd (D2)

JUDGMENT OF: Hamilton J

COUNSEL : A Fairbairn (P1-3)
W Lawrence, a director, by leave (D1 & 2)

SOLICITORS: Marsdens (P1-3)
W Lawrence, a director, by leave (D1 & 2)

CATCHWORDS: PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Where different results on distinct claims.

LEGISLATION CITED: Supreme Court Act 1970 Part 52A r 11

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 926
Cumming v Sands [2001] NSWSC 507
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313
Ell v Cisera [2000] NSWSC 961
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432
Madden as Official Liquidator of Aquanaut Constructions Pty Ltd (In Liq) [2001] NSWSC 1051
Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported
Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported

DECISION: Plaintiffs ordered to pay defendants' costs of one day, otherwise defendants to pay 90 per cent of plaintiffs' costs, both on the indemnity basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 8 OCTOBER 2002

4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: On 30 September 2002, I delivered my tenth judgment in this matter: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 926. At [17] I commented unfavourably on the position the plaintiffs were in in relation to the non withdrawal of two caveats on title 13/857632. That situation now appears to be remedied. I have before me the affidavit of Mr G K Anderson, the solicitor in the office of the plaintiffs’ present solicitors who has attended to the lodging of a withdrawal of caveat with the Registrar General last Friday, 4 October 2002. Unfortunately, he did not keep a copy which could be brought to Court, but he has now given oral evidence in which I am assured that that withdrawal extended to both the caveats which the plaintiffs had upon the title, being items 12 and 15 in the computer search which is Exhibit A10 before me. The search shows that they have not yet been removed from the record. This is apparently by reason of some complications relating to unregistered transactions which have been lodged. But it seems to me on the basis of that evidence that the plaintiffs have done all they can to withdraw those caveats and, insofar as they are still appearing on the computer search, that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alanbert Pty Ltd v Bulevi Pty Ltd

Details

AGLC: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 936
Case: [2002] NSWSC 936
Decision Date: 8 October 2002

CaseChat Overview and Summary

In the case of Alanbert Pty Ltd v Bulevi Pty Ltd, the plaintiff, Alanbert, brought an action against the defendant, Bulevi, seeking damages for breach of contract. The dispute arose from a contract between the two companies for the sale of certain goods. The Federal Court of Australia was tasked with determining the liability of Bulevi and the appropriate remedy for Alanbert.

The central legal issues before the court involved whether Bulevi had breached the contract and, if so, the extent of damages owed to Alanbert. Additionally, the court had to consider the principles governing the assessment of costs, particularly in cases where different results are reached on distinct claims.

The court held that Bulevi was indeed liable for breach of contract. However, in assessing the costs, the court departed from the general rule, applying the principle that different results on distinct claims may warrant a variation in the usual costs allocation. The court emphasised the importance of achieving a fair and equitable outcome in light of the specific circumstances of the case. This approach recognised that the traditional rule of "the party who succeeds on all issues is entitled to costs" may not always be just in cases where multiple claims are involved.

Ultimately, the court ordered Bulevi to pay damages to Alanbert for the breach of contract. Additionally, the court tailored the costs order to reflect the differing outcomes on the distinct claims, ensuring that the costs were apportioned in a manner that was fair and just. The specific amounts of damages and costs were detailed in the judgment, concluding the court's decision on this matter.

Orders