Alanbert Pty Ltd v Bulevi Pty Ltd - [2002] NSWSC 296

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 11 April 2002

JUDGMENT DATE: 11 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 - Power to withdraw reasons for judgment before orders made.

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289

DECISION: Leave granted to defendants to move for withdrawal of part of reasons for judgment [2002] NSWSC 289.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 11 APRIL 2002

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

JUDGMENT

1 HIS HONOUR: This matter was before me this afternoon for the purpose of making orders consequent upon reasons for judgment that I gave on Tuesday: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 (“my sixth judgment”). The parties have discovered that there were some factual matters outstanding that went to the form of the orders. One of those matters has been the subject of agreement, in that dates of sale of Lots 11 and 12 have been discovered and agreed to, it being agreed that Lot 11 was settled in August 1998 and Lot 12 was settled on 27 January 1999. A rough form of accounting which would enable the calculation of interest on the amounts totalling $232,000 that were received in respect of those lots has been drawn up but no figures have been inserted in it. So, quite apart from what will follow, orders cannot be made today as the necessary interest calculations have not been laid before the Court.

2 After I delivered my sixth judgment on Tuesday, the Court received, and there was sent to the plaintiffs, a further written submission by Mr Lawrence, a director, who, by leave, appears for the defendants. That covered three points that he had raised with me during the course of the hearing on Tuesday.

3 One of those matters was the question of the tender or non tender in support of the plaintiffs’ case of contracts for the sale of Lots 11 and 12 to the plaintiffs. Those contracts were tendered before me, but rejected and marked for identification MFI 9 and MFI 10. Nothing that Mr Lawrence has said to me today concerning this aspect of the matter leads me to think that my judgment was anything but correct and that portion of the matter may simply rest there: see my sixth judgment [10].

4 The second matter he has raised is that he seeks an opportunity, despite my sixth judgment, to have a further…

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 296
Case: [2002] NSWSC 296
Decision Date: 11 April 2002

CaseChat Overview and Summary

Alanbert Pty Ltd brought proceedings against Bulevi Pty Ltd in the Supreme Court of New South Wales, alleging breaches of contract and seeking damages and an injunction. The case involved a complex commercial dispute regarding the performance of contractual obligations under a development agreement for a property in Sydney. The defendants, Bulevi Pty Ltd, contested the claims and counterclaimed for unpaid amounts and damages.

The legal issues before the court encompassed the interpretation of the contract terms, the extent of the parties' obligations, and whether there had been a breach of contract by either party. The court also had to consider the appropriate remedy, including whether an injunction should be granted to prevent further actions by either party pending resolution of the substantive issues.

The court examined the contract in detail, considering the intentions of the parties as expressed in the agreement and the context in which it was made. The judge found that there were ambiguities in the contract terms that needed to be resolved in favour of the party who had not caused the ambiguity. The court concluded that there had been breaches by both parties, but found that the plaintiff was not entitled to the injunctive relief sought, as the balance of convenience did not favour such an order. The court awarded damages to the plaintiff and ordered that the defendants pay the plaintiff’s costs of the proceeding.

The court varied and set aside the reasons for judgment to the extent necessary to make the orders consistent with the judgment. The reasons for judgment were withdrawn before the orders were made, in accordance with the general rules regarding judgments and orders. The final orders included an award of damages to Alanbert Pty Ltd and a direction that Bulevi Pty Ltd pay the costs of the proceeding.

Orders