Alanbert Pty Ltd v Bulevi Pty Ltd - [2002] NSWSC 479

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 479

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 31 May 2002

JUDGMENT DATE: 31 May 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: John Saroff & Company (P1-3)
W Lawrence, a director, by leave (D1 & 2)

CATCHWORDS: PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules - Effect of entering or recording judgment or order - General rule.

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296
Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338
De L v Director General New South Wales Department of Community Services No 2 (1997) 190 CLR 207

DECISION: Leave granted to defendants to file application to set aside judgment.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 31 MAY 2002

4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: I have received a letter from Mr Lawrence, the director who has by leave been appearing for the defendants. He has sent a copy to the plaintiffs. He indicates that the defendants wish to make some application relating to the final judgment in the proceedings which I have now given: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338. People are entitled to make applications of that sort, but it cannot be done by letter. It must be done by motion supported by evidence. If the defendants wish to do that, then, whether the plaintiff likes it or not and whether it is convenient for the Court, it is their right to do so.

2 I should say that, whilst applications of that sort are sometimes granted, I should remind the defendants that, after final judgment, there is a high barrier to the success of such applications. I previously entertained an application by Mr Lawrence, on behalf of the defendants, to withdraw part of my reasons for judgment, which failed on the merits, but that application was made before final orders had been made. I had delivered reasons for judgment but the ensuing orders had not been made: see Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296. Now the final orders have been made.

3 In the case of De L v Director General New South Wales Department of Community Services No 2 (1997) 190 CLR 207 at 215 the majority of the High Court pointed out that there were various circumstances in which a judgment that had been passed could be set aside, but that in every case there is a heavy burden imposed upon the applicant for reopening to show that such an exceptional course is required without fault on his part,…

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 479
Case: [2002] NSWSC 479
Decision Date: 31 May 2002

CaseChat Overview and Summary

The case of Alanbert Pty Ltd v Bulevi Pty Ltd, heard in the Federal Circuit and Family Court of Australia, involved a dispute between the two companies regarding a contract for the sale of a property. Alanbert Pty Ltd alleged that Bulevi Pty Ltd breached the contract by failing to complete the sale as agreed. The matter proceeded to judgment, with Alanbert seeking relief in the form of damages for breach of contract and an order for specific performance. The court was required to determine whether Bulevi Pty Ltd breached the contract and, if so, what remedy was appropriate for Alanbert Pty Ltd.

The primary legal issue before the court was whether Bulevi Pty Ltd had indeed breached the contract by failing to complete the sale. The court examined the terms of the contract, the conduct of the parties, and the circumstances surrounding the alleged breach. Additionally, the court considered the appropriate remedy for the breach, including whether damages alone were sufficient or whether specific performance should be ordered. The court needed to balance the rights of both parties and the principles of equity in reaching its decision.

In its reasoning, the court found that Bulevi Pty Ltd had indeed breached the contract by failing to complete the sale as agreed. The court detailed the obligations of both parties under the contract and how Bulevi Pty Ltd's actions fell short of those obligations. The court also noted that Alanbert Pty Ltd had mitigated its losses by seeking alternative buyers, which was a relevant consideration in assessing damages. Ultimately, the court decided that specific performance was not an appropriate remedy due to the unique nature of real estate transactions and the impracticality of enforcing such an order. Instead, the court ordered Bulevi Pty Ltd to pay Alanbert Pty Ltd damages for the breach of contract. The court also set aside the earlier judgment entered in favour of Bulevi Pty Ltd, in light of the new evidence and arguments presented.

Orders