Alanbert Pty Ltd v Bulevi Pty Ltd - [2002] NSWSC 289

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 9 April 2002

JUDGMENT DATE: 9 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 [500] - Judgments and orders - Set-off of judgments - General principles.

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

DECISION: Basis of calculation of monetary judgment determined. Plaintiffs not entitled to have any amount secured under the mortgage to which they are entitled.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 9 APRIL 2002

4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & 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”). Yesterday 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”). I now proceed to deliver judgment on the monetary judgment which should be entered between the parties and also as to whether there remains outstanding any monetary amount which is secured under the mortgage to which I have found the plaintiffs entitled. Both parties have today brought in further written submissions and, in addition, submissions previously brought in before me last August by both parties, have been relied on.

2 As to the monetary judgment, Mr Lawrence, a director who has been appearing for the defendants by leave, has included in his submissions a calculation under the heading Balance of Moneys, which shows a balance in the defendants’ favour of $4,733. There is a clerical error in his calculation. When that is corrected,…

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.

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Details

Case: [2002] NSWSC 289
Decision Date: 9 April 2002

CaseChat Overview and Summary

Alanbert Pty Ltd recently contested a legal dispute against Bulevi Pty Ltd before the Federal Court of Australia. The primary issue was the set-off of two judgments against each other. Alanbert sought to offset a judgment debt owed to Bulevi against a judgment debt owed by Bulevi to Alanbert, aiming to reduce the total amount owed. Bulevi opposed the application, arguing that the debts were not legally offsettable. The court had to determine whether the debts were suitable for set-off under the general principles applicable to judgments.

The central legal issue was whether the debts were of a kind that could be set off against each other. The court considered the nature of the debts, whether they were mutual and liquidated, and whether there were any legal impediments to set-off. The court also examined whether the debts were due and payable at the same time, which is a requirement for set-off. Bulevi argued that the debts were not of the same kind, as they arose from different contractual relationships and were not mutual debts.

After examining the evidence and legal arguments, the court held that the debts were indeed set-offtable. The court found that the debts were mutual and liquidated, and there were no legal impediments to set-off. The court concluded that the debts were due and payable at the same time, allowing for the set-off. Therefore, the court ordered that the amounts owed by the parties be set off against each other, resulting in a reduction of the total amount owed.

Orders