Bachour Enterprises Pty Ltd v Munzer (No 3) - [2025] NSWSC 531

Supreme Court

New South Wales

Medium Neutral Citation: Bachour Enterprises Pty Ltd v Munzer (No 3) [2025] NSWSC 531
Hearing dates: 21 May 2025
Date of orders: 21 May 2025
Decision date: 21 May 2025
Jurisdiction: Equity
Before: Rees J
Decision:
Adopt referee’s report; judgment for damages.

Catchwords:
CIVIL PROCEDURE — parties refer calculation of damages to referee — referee calculates lost profits for ‘charcoal chicken’ business from when vendor re-took possession of premises until purchaser regains possession after judgment — whether to adopt referee’s report — principles at [3]-[5] — report adopted.
DAMAGES — contract for sale of business — vendor changes his mind and re-takes possession of shop to exclusion of purchaser — purchaser elects damages — whether discount should be applied to lost profits calculated by referee — no discount.
COSTS — costs of reference — purchaser entitled to costs of reference as substantial lost profits calculated and awarded — costs of proceedings — Calderbank letter — difficult to say that plaintiff achieved better outcome when offer was ‘flip slip’ of outcome.

Legislation Cited:
Uniform Civil Procedure Rules, r 20.24(1)

Cases Cited:
Bachour Enterprises Pty Ltd v Munzer [2024] NSWSC 1601
Bachour Enterprises Pty Ltd v Munzer (No 2) [2025] NSWSC 30
The Owners - Strata Plan No 89074 v Ceerose Pty Limited [2024] NSWSC 1494
Xuereb v Viola (1989) 18 NSWLR 453
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Harris v Morabito Holdings Pty Ltd [2018] NSWSC 912
Woolf v 52 Birriga Road Pty Ltd [2012] NSWSC 921
Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350
Wenham v Ella (1972) 127 CLR 454; [1972] HCA 43
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; [1986] HCA 81
Cessnock City Council v 123 259 932 Pty Ltd (2024) 418 ALR 304; [2024] HCA 17]
Brighton Automotive Holdings Pty Ltd v Honda Australia Pty Ltd (No 2) [2024] VSC 262

Category: Consequential orders
Parties: Bachour Enterprises Pty Ltd (Plaintiff)
Simon Munzer (First Defendant)
Paradise CC Corp Pty Ltd (Second Defendant)
Representation:
Counsel:
A Byrne (Plaintiff)

S Munzer (First Defendant in person)
Solicitors:
Cordoba Legal (Plaintiff)

File Number(s): 2022/355581

JUDGMENT

HER HONOUR: The plaintiff seeks orders for the adoption of a referee's report, an award of damages based on that report, and consequential costs orders.
I gave judgment in this matter on 13 December 2024: Bachour Enterprises Pty Ltd v Munzer [2024] NSWSC 1601. I gave a further judgment in respect of costs on 13 February 2025: Bachour Enterprises Pty Ltd v Munzer (No 2) [2025] NSWSC 30. This judgment assumes familiarity with my earlier judgments.

Adoption of referee’s report

Drawing on my judgment in The Owners - Strata Plan No 89074 v Ceerose Pty Limited [2024] NSWSC 1494, as referees are not officers of the Court, their reports have no legal consequence unless and until they are adopted by the Court: Xuereb v Viola (1989) 18 NSWLR 453

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: [2025] NSWSC 531
Decision Date: 21 May 2025

CaseChat Overview and Summary

Bachour Enterprises Pty Ltd sued Munzer over the sale of a business. The dispute reached the court over the calculation of damages related to lost profits for a 'charcoal chicken' business, from the time the vendor re-took possession of the premises until the purchaser regained possession after judgment. The case was referred to a referee who calculated the lost profits, and the court had to decide whether to adopt the referee's report. The parties also contested whether a discount should be applied to the lost profits calculated by the referee.

The court considered the principles set out in previous judgments and found that the referee's report should be adopted. The court held that there was no basis to discount the lost profits calculated by the referee. The court also considered the costs of the reference and the proceedings, noting that the purchaser was entitled to the costs of the reference given the substantial lost profits calculated and awarded. Regarding the costs of the proceedings, the court found it difficult to say that the plaintiff achieved a better outcome when the offer made was essentially a 'flip slip' of the outcome awarded.

The court's final orders included the adoption of the referee's report on lost profits, no discount on the lost profits, and the awarding of costs of the reference to the purchaser. The court also determined that the costs of the proceedings should not be awarded to the plaintiff due to the nature of the offer made.

Orders