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Bale v Kimberley Developments Pty Ltd (No 3)

Bale v Kimberley Developments Pty Ltd (No 3)

Case [2023] NSWSC 973 18 August 2023

Constructive Trust

Account of Profits

Restitution

Admissibility of Evidence

Ambiguity in Legal Instruments

Property Law

Equity Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bale v Kimberley Developments Pty Ltd (No 3) [2023] NSWSC 973
Hearing dates: 6 July, 11 August 2023
Decision date: 18 August 2023
Jurisdiction: Equity
Before: Leeming JA
Decision:
1. Note that Kimberley Developments has retransferred title to the Forest Lodge land to Ms Bale.
2. Ms Bale to pay Kimberley Developments the amount of $301,560.99 within 21 days of today.
3. Note that the effect of orders 3 and 4 made by the Court on 23 June 2022 is that Kimberley Developments has the benefit of a charge over the Forest Lodge land securing the obligation in order 2 above.
4. Discharge the freezing order over Kimberley Developments’ bank accounts made on 23 January 2019 and varied on 29 January 2019, and discharge the undertakings given on 9 August 2022.
5. Exhibits to be returned.

Catchwords:
PROCEDURE – adjustments and allowances – retransfer of land held to be on constructive trust – plaintiff to account for payments discharging mortgage – defendant to account for rent received less expenses reasonably incurred in the maintenance of the land – calculation of interest – relevance of principle in Ghana Commercial Bank v Chandiram [1960] AC 732
ORDERS – construction of court orders – ambiguity – regard to reasons – regard to context

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 100
Evidence Act 1995 (NSW), ss 64, 80, 91
Local Government Act 1993 (NSW), s 550
Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:
Adams v Angell (1877) 5 Ch D 634
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Australian Competition & Consumer Commission v Advanced Medical Institute Pty Ltd (No 2) (2005) 147 FCR 235; [2005] FCA 1357
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104
Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Cochrane v Cochrane (1985) 3 NSWLR 403
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; [1997] HCA 17
Ganesh v National Australia Bank Ltd [2021] VSCA 45
Ghana Commercial Bank v Chandiram [1960] AC 732
Gnych v Polish Club Ltd (2015) 255 CLR 414; [2015] HCA 23
Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59
Hagan v Waterhouse (1991) 34 NSWLR 308
Jason Hall t/as JHL Lawyers v Val Eco Homes Pty Ltd (in liq) [2021] QCA 236
Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22
Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
Kimberley Developments Pty Ltd v Bale (No 2) [2023] NSWCA 95
Kimberley Developments Pty Ltd v Cicihour Pty Ltd [2020] NSWCATAP 213
Kimberley Developments Pty Ltd v Cicihour Pty Ltd (No 2) [2020] NSWCATAP 250
Morgan Equipment Co v Rodgers (No 2) (1993) 32 NSWLR 467
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558;

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 Bale v Kimberley Developments Pty Ltd (No 3)

Details

AGLC: Bale v Kimberley Developments Pty Ltd (No 3) [2023] NSWSC 973
Case: [2023] NSWSC 973
Decision Date: 18 August 2023

CaseChat Overview and Summary

The case of Bale v Kimberley Developments Pty Ltd (No 3) involved a dispute between the plaintiff, Bale, and the defendant, Kimberley Developments Pty Ltd, regarding the retransfer of land held on a constructive trust. The dispute arose from a complex series of transactions involving the land, and the court was tasked with determining the financial implications of these transactions. The matter was heard in the Supreme Court of Western Australia.

The primary legal issues the court had to address were the adjustment and allowances for the retransfer of the land, the calculation of interest on the amounts owed, and the interpretation of the court's previous orders in light of the principle established in Ghana Commercial Bank v Chandiram [1960] AC 732. Specifically, the court needed to determine the appropriate method for calculating interest, whether the principle in Ghana Commercial Bank v Chandiram applied, and how to resolve any ambiguities in the court's earlier orders.

The court considered the principle in Ghana Commercial Bank v Chandiram, which held that where a party is required to repay a sum that includes interest, the interest should be calculated on the basis of the full amount of the debt from the date of the judgment until the date of payment. The court held that this principle was applicable and directed that interest should be calculated in accordance with it. The court also resolved the ambiguity in the earlier orders by considering the reasons and context in which those orders were made. The court concluded that the plaintiff was required to account for payments made to discharge a mortgage on the land, and the defendant was to account for the rent received less expenses reasonably incurred in maintaining the land. The court further ordered that interest should be calculated in accordance with the Ghana Commercial Bank v Chandiram principle.

The court's final orders provided that the plaintiff must account for payments made to discharge the mortgage on the land, and the defendant must account for the rent received, less expenses reasonably incurred. The court also ordered that interest should be calculated in accordance with the principle in Ghana Commercial Bank v Chandiram, from the date of the judgment until the date of payment. The court's reasoning and the outcome provided clarity on the financial implications of the retransfer of the land and the calculation of interest, ensuring that both parties were aware of their respective obligations.

Orders