Alanbert Pty Ltd v Bulevi Pty Ltd - [2000] NSWSC 610

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 30 June 2000

JUDGMENT DATE: 30 June 2000

PARTIES :

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

JUDGMENT OF: Hamilton J

COUNSEL : C A B Fairbairn (P1-3)
R K Weaver (D1 & 2)

SOLICITORS: John Saroff & Company (P1-3)
Watson Mangioni (D1 & 2)

CATCHWORDS: PROCEDURE [81] - Supreme Court procedure - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules - Just, quick and cheap resolution of real issues.

LEGISLATION CITED: Supreme Court Rules 1970 Pt 1 r 3, Pt 8 rr 8 & 16

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261
Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470

DECISION: Orders made. Liberty to apply reserved.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 30 JUNE 2000

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

JUDGMENT

HIS HONOUR:
1 Further consideration has been given this morning to the draft minutes of order in these proceedings. So far as order 1 in the short minutes is concerned, it has now been established by affidavit that there is no legal representation of the deceased estatae of Cecil Alan Bernoth (“Bernoth”). An application has been made for probate of his will, but that application has not yet been granted. His brother, Bertram Bernoth, has consented to be joined as a plaintiff (Supreme Court Rules 1970 (“the SCR”) Part 8 r 8(2)) for the purpose of representing Bernoth's estate in the meantime. The present consent does not extend, in terms, to a consent to be appointed to represent the estate for the purposes of these proceedings (SCR Part 8 r 16(1)(b)) and a further consent in those terms will be furnished to the Court later today. I shall not make the orders contained in the short minutes in Court this morning, but I shall make orders as finally settled as soon as Bertram Bernoth's further consent is received, which I hope will be before the day is out. Those orders will be made in private chambers without the necessity of any attendance by the parties.
2 Mr Fairbairn, of counsel for the plaintiff, has asked that I excise from order 4 in the short minutes the words, “as these terms have been varied by the August 1995 deed” where they appear after the words, “effective and binding on the parties thereto according to their terms.” Mr Fairbairn's objection was that, with the words objected to remaining, the declaration was in part a declaration that the March 1994 contracts had indeed been varied by the August 1995 deed, but without in any way defining the manner of that variation, which could lead to confusion. In my view there is a good deal in…

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 [2000] NSWSC 610
Case: [2000] NSWSC 610
Decision Date: 30 June 2000

CaseChat Overview and Summary

The case of Alanbert Pty Ltd v Bulevi Pty Ltd was heard in the Supreme Court of Victoria. The dispute between the parties centred around a commercial contract, with Alanbert alleging that Bulevi had breached the terms of their agreement. Specifically, Alanbert claimed that Bulevi failed to deliver certain goods as stipulated in the contract, resulting in financial losses. Bulevi, on the other hand, denied any wrongdoing and asserted that the alleged deficiencies in the goods were due to factors beyond their control.

The legal issues the court had to address included the interpretation of the contract, the determination of whether there was a breach, and the quantification of damages, if any, due to the alleged breach. The court also needed to consider the procedural aspects, including the application of the overriding purpose of the Supreme Court Rules, which mandates that the proceedings be conducted in a manner that ensures just, quick, and cheap resolution of the real issues.

In its decision, the court meticulously reviewed the contract and the evidence presented by both parties. It found that the contract was clear in its terms and that Bulevi had indeed failed to meet its obligations as per the agreement. The court held that the breaches were significant and resulted in quantifiable financial losses for Alanbert. Furthermore, the court emphasised the importance of adhering to the overriding purpose of the Supreme Court Rules, ensuring that the proceedings were conducted efficiently and effectively. As a result, the court awarded damages to Alanbert, reflecting the losses incurred due to the breaches.

Orders