Alanbert Pty Ltd v Bulevi Pty Ltd - [2002] NSWSC 338

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 22 April 2002

JUDGMENT DATE: 22 April 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 - Rehearing - Withdrawal of reasons for judgment before orders made - PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Success of different parties on distinct claims.

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261
Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470
Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610
Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785
Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288
Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289
Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296
Mackay v Dick (1881) 6 App Cas 251

DECISION: Application that Court withdraw part of reasons for judgment refused. Order that there be no order as to the costs of the proceedings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 22 APRIL 2002

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

JUDGMENT

1 HIS HONOUR: I delivered my substantive judgment in this matter on 6 April 2000: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 (“my first judgment”). On 26 May 2000 I delivered a judgment which determined that Alanbert Pty Ltd was entitled to a second mortgage over lot 13 to secure any part of the balance purchase price of $225,000 that remained outstanding: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470 (“my second judgment”). On 30 June 2000 I gave further reasons for the form of my orders: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610 (“my third judgment”). By a judgment delivered on 30 August 2001 I defined the issues as to monetary claims which remained to be determined between the parties: Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785 (“my fourth judgment”). On 8 April 2002 I delivered a judgment which essentially determined the last disputed items between the parties other than accounting items: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288 (“my fifth judgment”). The following day I delivered a judment which determined the basis of calculation of the monetary judgment and that there was no amount which remained to be secured under the mortgage to which the plaintiffs were entitled: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 (“my…

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 338
Case: [2002] NSWSC 338
Decision Date: 22 April 2002

CaseChat Overview and Summary

Alanbert Pty Ltd initiated legal proceedings against Bulevi Pty Ltd in the Federal Court of Australia, asserting breaches of contract and associated claims for damages. The case centred on a contract for the sale of property and the subsequent failure to complete the transaction. The defendant contested the allegations, arguing that any breaches were minor and did not warrant the plaintiff’s claims.

The primary legal issues before the court were whether Bulevi Pty Ltd had indeed breached the contractual terms, and if so, to what extent. Additionally, the court had to determine the appropriate remedies and whether Alanbert Pty Ltd was entitled to the damages claimed. The defendant also raised procedural issues regarding the withdrawal of reasons for judgment before orders were made.

In addressing these issues, the court examined the evidence and contractual obligations in detail. The judge found that Bulevi Pty Ltd had indeed breached the contract but concluded that the breaches did not justify the full extent of damages claimed by Alanbert Pty Ltd. The court highlighted the importance of proportionality in awarding damages and noted the differing levels of success for each party on their respective claims. The court exercised its discretion to depart from the general rule on costs, taking into account the differing outcomes on the distinct claims made by each party. The outcome reflected the principle that the costs should reflect the overall success of the parties on their respective claims.

Orders