Barrington Tops Developments Pty Ltd v Low - [2008] NSWSC 859

CITATION: Barrington Tops Developments Pty Ltd v Low [2008] NSWSC 859

HEARING DATE(S): 19 August 2008

JUDGMENT DATE :
19 August 2008

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Assessment of damages revised; orders made; stay of orders refused.

CATCHWORDS: PROCEDURE [77], [480] – Supreme Court procedure – New South Wales – Jurisdiction generally – Stay of proceedings – Appeal contemplated – Relevant principles – Successful party able to repay judgment if appeal successful – Judgments and orders – In general – Statement of reasons for decision – Amendment of reasons before orders made.

CATEGORY: Procedural and other rulings

CASES CITED: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Barrington Tops Developments Pty Ltd v Low [2008] NSWSC 832
Penrith White Water Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

PARTIES: Barrington Tops Developments Pty Limited (P)
Stephen Thomas Low (D)

FILE NUMBER(S): SC 5999/06

COUNSEL: R J Colquhoun (P)
P T Russell (D)

SOLICITORS: Borthwick Wilson & Mitchell (P)
W J Enright & Prentice (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 19 AUGUST 2008

5999/06 BARRINGTON TOPS DEVELOPMENTS PTY LTD v STEPHEN THOMAS LOW

JUDGMENT

1 HIS HONOUR: In this matter I have delivered judgment on 14 August 2008: Barrington Tops Developments Pty Ltd v Low [2008] NSWSC 832 (“my judgment”).

2 In assessing damages in [49] of my judgment I said:

“…… Doing the best I can on Mr Brorson’s evidence, I find that, if the promise were carried out, the lots would have been sold some time before March 2006 at an average price of $270,000. This would have provided a total sale price of $810,000, providing an excess over $460,000 of $350,000. The deductions from the gross sale price for agent’s commission, legal costs and disbursements and GST have been calculated at $119,548, giving a total net excess over $460,000 of $230,452. In light of that figure I assess the defendant’s damages at $230,000. The plaintiff has not contested the valuation or the calculations of deductions and has not seriously contested the assessment of damages.”

3 It occurred to me subsequently that there was a problem with this calculation in that, although the figure of $119,548 was agreed between the parties as the appropriate deduction from the gross sale price, that figure had been calculated on the basis of a gross sale price of $840,000 rather than the $810,000 that I found appropriate.

4 Upon my drawing this fact to the parties’ attention, the agreed figure for deduction was re-calculated based upon an $810,000 sale price and the agreed figure so calculated was $115,501 in lieu of $119,548, giving a total net excess over $460,000 of $234,499. The parties were agreed that, in view of this corrected calculation, it was appropriate that I should assess the defendant’s damages at the round figure of $234,000 in lieu of the round figure of $230,000.

5 The calculation of the deduction and assessment of damages contained in [4] of…

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: [2008] NSWSC 859
Decision Date: 19 August 2008

CaseChat Overview and Summary

Barrington Tops Developments Pty Ltd filed a claim against Low, seeking a stay of proceedings on the basis that an appeal was contemplated. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the stay of proceedings was warranted, given the possibility of an appeal and the potential consequences if the appeal were successful. Additionally, the court had to consider whether it should amend its reasons before making the final orders.

The court held that the principles governing the stay of proceedings in the context of a contemplated appeal required the successful party to be able to repay the judgment if the appeal were successful. In this instance, the court found that such a condition was met, and therefore, a stay was appropriate. Furthermore, the court noted that it had the discretion to amend its reasons before making the final orders. The court exercised this discretion and amended its reasons to provide a more comprehensive explanation of its decision. The final orders included a stay of proceedings pending the outcome of the appeal, with conditions attached to ensure the successful party could repay the judgment if the appeal were unsuccessful.

Orders