Arambasic v Veza (No 5)
[2014] NSWSC 1399
•15 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: Arambasic v Veza (No 5) [2014] NSWSC 1399 Hearing dates: On the papers Decision date: 15 October 2014 Jurisdiction: Common Law Before: Sackville AJ Decision: 1. Judgment for the second cross-claimant (Ms Veza) against the second cross-defendant (Dr White) in the sum of $85,600.
2. Judgment for the first plaintiff (Mr Arambasic) against the first and second defendants in the sum $9,200.
3. Grant leave to Mr Arambasic for the issue of a writ for the possession of the land comprised in folio identifier Lot 7, Sec 21, DP 758612, being the land situated at and known as 10 Potch Street, Lightning Ridge NSW 2834 (the Property), such writ not to be issued before 10 December 2014.
4. The second plaintiff (Dr White) pay the costs of the first and second defendants of her claim against them.
5. Dr White pay Ms Veza's costs of Ms Veza's cross-claim against Dr White for breach of contract.
6. The first and second defendants pay Mr Arambasic's costs of his claims for possession of the Property and for mesne profits.
Catchwords: PRACTICE AND PROCEDURE - judgment and orders - calculation of damages including interest - award of costs - orders consequential on judgment for possession Legislation Cited: Civil Procedure Act 2005 (NSW) ss 98, 100 Cases Cited: Arambasic v Veza (No 4) [2014] NSWSC 1109 Category: Consequential orders Parties: Steve Slobodan Arambasic (First Plaintiff/First Cross-Defendant)Jasmin White (Second Plaintiff/Second Cross-Defendant)Kaye Monique Veza (First Defendant/Second Cross-Claimant)Gary James Griffiths (Second Defendant/First Cross-Claimant) Representation: Counsel:
In person (Plaintiffs)
H Jewell (Defendants)
Solicitors:
Stuart Percy & Associates
File Number(s): 2013/312662 Publication restriction: None
Judgment
SACKVILLE AJA: This judgment is consequential on my judgment in Arambasic v Veza (No 4) [2014] NSWSC 1109 (Principal Judgment). These reasons should be read in conjunction with the Principal Judgment.
The orders made in the Principal Judgment were as follows:
(1) Dr White's claim against the Defendants be dismissed.
(2) Judgment for possession of the Property in favour of Mr Arambasic against the Defendants.
(3) Judgment for Mr Arambasic against the Defendants on his claim for mesne profits.
(4) Judgment for Ms Veza on her cross-claim against Dr White for damages for breach of contract.
(5) The Amended Cross-Claim otherwise be dismissed.
(6) Direct the Defendants to file and serve proposed additional short minutes of order within fourteen days, accompanied by brief written submissions, dealing with the following matters:
(a) quantification of the damages (including interest) that should be awarded to Ms Veza on her claim against Dr White;
(b) quantification of the amount that should be awarded to Mr Arambasic as mesne profits;
(c) the period that should elapse before Mr Arambasic is given leave to issue a writ for possession of the Property; and
(d) the costs of the proceedings.
(7) Mr Arambasic and Dr White, within a further fourteen days, file and serve proposed short minutes of order in lieu of those proposed by the Defendants, accompanied by brief written submissions as to the matters identified in Order 6.
The Defendants filed brief written submissions dated 1 September 2014. These were supported by an affidavit from the Defendants' solicitor quantifying the costs incurred by the Defendants in the conduct of the proceedings.
The Plaintiffs filed two sets of short minutes of order and written submissions dated (respectively) 11 and 17 September 2014. Each set of submissions were signed by both Plaintiffs.
I explained in the Principal Judgment (at [170]-[171]) the basis for calculating the damages to be awarded to Ms Veza against Dr White for breach of the 2011 Sale Agreement. The Defendants' submissions provide calculations that are intended to give effect to those paragraphs of the Principal Judgment.
The Defendants' calculations, supported by an amortisation schedule, suggests that the principal sum due by Ms Veza to Dr White under the Credit Contract, as at 14 August 2012, was $78,869.56. The Defendants' calculations assume that the "Balance Price" under the Credit Contract was $89,650 (that is, the "Balance Price" of $99,650, less the deposit paid by Ms Veza of $10,000).
The better view of the Credit Contract is that the Balance Price is that recorded in the Credit Contract, namely $99,650. On this view of the Credit Contract, the amount due by Ms Veza on 14 August 2012 calculated by the Defendants should be increased by $10,000 (without taking account of any interest on that sum, which would need to be incorporated into any revised amortised schedule).
On the other hand, the Defendants' submissions do not seem to make any allowance for my finding (Principal Judgment at [138(d)]) that a term of the 2011 Sale Agreement was that Dr White agreed to forego her entitlement to arrears of weekly payments and other amounts due by Ms Veza under the Credit Contract as at 4 May 2011. The arrears of weekly payments and other amounts related to the period from 15 December 2009 (when Ms Veza ceased making weekly payments) until 4 May 2011, a period of approximately 72 weeks. Since the Credit Contract provided for weekly instalments of $150, the arrears on 4 May 2011 amounted to approximately $10,800 (not including arrears of rates and other outgoings).
Mathematical precision in the calculation of Ms Veza's damages is not feasible without further information, such as the quantum of the arrears of outgoings. In the circumstances, justice will be served if the two amounts overlooked in the Defendants' submissions are taken as offsetting each other.
In assessing the damages to which Ms Veza is entitled, it is also necessary to take account of her failure to pay any moneys under the Credit Contract between 4 May 2011 and the date Mr Arambasic became registered proprietor of the Property (3 January 2013). The moneys due in respect of that period of 87 weeks amount to approximately $13,050.
It is convenient to round up the Defendants' calculation of the principal sum due under the Credit Contract on 14 August 2012 to $79,000. On this basis, Ms Veza is entitled to damages equivalent to the net sale price of the Property of $153,500 (see Principal Judgment at [171]), less $92,050 (comprising the two sums of $79,000 and $13,050 referred to earlier). The total is therefore $61,450.
In addition, Ms Veza should be awarded interest on the sum of $61,450 pursuant to s 100(1) of the Civil Procedure Act 2005 (NSW). Interest should be awarded from 14 August 2012 until the date of judgment which should be taken as the date of delivery of this judgment (15 October 2014). This is a period of 792 days. In accordance with Practice Note SC Gen 16 (16 June 2010), the interest in respect of this period amounts to approximately $24,131.76. The total is $85,581.76, which I round off to $85,600.00. Judgment should be entered for Ms Veza against Dr White for that amount.
I indicated in the Principal Judgment (at [173]) that Mr Arambasic is entitled to a modest award of mesne profits in respect of the Defendants' wrongful possession of the Property after Mr Arambasic became registered proprietor on 3 January 2013. As the Defendants' written submissions point out, there was no evidence of the rental value of the Property and it cannot be assumed that the weekly payments due under the Credit Contract accurately reflected the fair rental value of the Property during the period the Defendants were in occupation, given those instalments constituted payment for both a fee for occupation and an interest in the fee simple.
The market value of the Property in 2012, reflected in the offer made by Ms Jackson, suggests that the rental value of the Property was somewhat more than the figure of $50 per week suggested by the Defendants in their submissions. I propose to allow $100 per week as mesne profits between 3 January 2013 and 15 October 2014. This is a total of $9,200. Mr Arambasic is entitled to judgment against the Defendants for this sum.
In the Principal Judgment, I stated (at [172]) that the Defendants should be allowed a reasonably generous period to organise alternative accommodation before Mr Arambasic is granted leave to issue a writ for possession of the Property. Taking into account Mr Arambasic's need for accommodation, I think the appropriate period to allow is eight weeks.
The parties' written submissions said little on the question of costs. Having regard to the outcome of the various claims, the appropriate orders, in my opinion, are as follows:
1. Dr White pay the costs of the Defendants of her claim against them.
2. Dr White pay Ms Veza's costs of Ms Veza's cross-claim against Dr White for breach of contract.
3. The Defendants pay Mr Arambasic's costs of his claim for possession of the Property and for mesne profits.
4. Otherwise there be no order for the costs of the proceedings.
The Defendants submit that an order should be made pursuant to s 98(4) of the Civil Procedure Act specifying the gross amount of costs to be paid by Dr White to Ms Veza, instead of assessed costs. The affidavit filed on behalf of the Defendants does not provide sufficient detail to justify such an order being made. Accordingly, I decline to do so.
I make the following orders:
(1) Judgment for the second cross-claimant (Ms Veza) against the second cross-defendant (Dr White) in the sum of $85,600.
(2) Judgment for the first plaintiff (Mr Arambasic) against the first and second defendants in the sum $9,200.
(3) Grant leave to Mr Arambasic for the issue of a writ for the possession of the land comprised in folio identifier Lot 7, Sec 21, DP 758612, being the land situated at and known as 10 Potch Street, Lightning Ridge NSW 2834 (the Property), such writ not to be issued before 10 December 2014.
(4) The second plaintiff (Dr White) pay the costs of the first and second defendants of her claim against them.
(5) Dr White pay Ms Veza's costs of Ms Veza's cross-claim against Dr White for breach of contract.
(6) The first and second defendants pay Mr Arambasic's costs of his claims for possession of the Property and for mesne profits.
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Decision last updated: 15 October 2014