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 this judgment is substituted for the calculation and assessment of damages in [49] of my judgment. As the orders have not yet been made, much less entered, there is no difficulty in my revising the assessment in that fashion, particularly in view of the plaintiff’s consent.

6 The defendant has now brought forward a form of judgment/order. Paragraph 1 provides for judgment for the defendant against the plaintiff for $289,250 made up of $234,000 for damages as assessed above and $55,250 for interest on those damages up to the making of the orders. The plaintiff does not contest the assessment of interest at that figure.

7 I propose to insert at the commencement of paragraph 2 of the form of judgment/order the words “by consent”. That is because the entry of judgment for that amount is not as a result of adjudication by me but of the settlement between the parties of the issue relating to interest on the $460,000 initial payment of the mortgage debt and the terms of that order flow from an agreement to that effect between the parties as mentioned in [25] of my judgment.

8 Order 3 provides for the payment by the plaintiff of the defendant’s costs of the proceedings and no submission is put by the plaintiff in opposition to that order in the light of my decision.

9 Order 4 provides for the payment out to the defendant of the sum of the amounts for which judgment is entered in orders 1 and 2 from a fund set aside pending the determination of the proceedings. The making of this order at this stage is opposed on behalf of the plaintiff, which applies for a stay of the orders for 28 days whilst it seeks advice as to an appeal. The orders should not be made at this stage if the stay is granted, but there is no reason why it should not be made if the stay is refused.

10 I turn then to the plaintiff’s application for a stay of the orders. On that application there has been tendered before me as Exhibit A5 a letter from the defendant’s solicitors setting out the defendant’s financial position. The evidence of his financial position is tendered in that form with the consent of the plaintiff and it is stated that the plaintiff accepts as factual the material in the solicitor’s letter.

11 The principles involved in the grant of a stay of monetary orders pending appeal were set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 and recently repeated by McColl JA in Penrith White Water Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18] - [21].

12 A person who has obtained an order for the payment of money is entitled to the benefit of that order whilst the order stands even if an appeal is contemplated. The discretion of the Court is at large. A stay will usually be granted if it is established that the successful party, if paid the amount of the judgment, will or may be unable to repay it if the decision is reversed on appeal.

13 In this case the plaintiff, who applies for the stay, does not demonstrate that there will be any such difficulty. Rather, the defendant has established by the tender of uncontradicted evidence that he is a man of substance and there is no reason to think that the money payable under order 1 will not be able to be repaid if the decision is reversed. The money payable under order 2 will not be repayable in any case.

14 In those circumstances, even for the short time asked, I refuse a stay of the orders and I propose to make order 4 which will facilitate the release to the defendant of moneys from the appropriate fund.

15 There will be orders in accordance with the form of judgment/order initialled by me and placed with the papers.

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