Bertorello v Eden Apartments Pty Ltd - [2010] WASC 80

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BERTORELLO -v- EDEN APARTMENTS PTY LTD [2010] WASC 80

CORAM: BEECH J

HEARD: 21 APRIL 2010

DELIVERED : 21 APRIL 2010

PUBLISHED : 29 APRIL 2010

FILE NO/S: CIV 1430 of 2008

BETWEEN: CLAUDIA BERTORELLO
Plaintiff
AND
EDEN APARTMENTS PTY LTD
First Defendant
CLARK GRAY
Second Defendant
REGISTRAR OF TITLES
Third Defendant

Catchwords:

Contract - Damages - Assessment of damages - Turns on own facts

Legislation:

Nil

Result:

Damages assessed at $877,091.35

Category: B

Representation:

Counsel:

Plaintiff:     Mr P J Mugliston
First Defendant             :     Mr R G S Harrison
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Brook & Co
First Defendant             :     Tottle Partners
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Case(s) referred to in judgment(s):

Madden v Kevereski [1983] 1 NSWLR 305
Mills v Ruthol Pty Ltd (2004) 61 NSWLR 1
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272

BEECH J:

Introduction

On 21 April 2010 I heard an assessment of damages for breach of a contract for sale of land. I awarded damages in the sum of $877,091.35 with interest under s 32 of the Supreme Court Act1935 (WA). I said I would provide reasons later. These are my reasons.

Procedural history

On 24 April 2008 the plaintiff (Ms Bertorello) issued a writ of summons seeking specific performance of a contract between her and the first defendant (Eden), or damages in lieu.
On 3 June 2008 an amended written statement of claim was filed, seeking the same relief.
The statement of claim includes the following:
(a)on 27 April 2005 Ms Bertorello and Eden entered into a contract of sale of Lot 16 of the Eden Apartments at 73 Mill Point Road, South Perth (the Property) for a consideration of $3.2 million;
(b)it was a term of the contract that a deposit of $320,000 be paid within 45 days of acceptance;
(c)the contract was varied in writing on 27 April 2005 to provide that:
(i)in the event Ms Bertorello was unable to provide the 10% deposit within 45 days Eden agreed that she may provide a cash or bank guarantee deposit of 5% within 60 days from the date of acceptance; and
(ii)Eden agreed to give Ms Bertorello a discount of $600,000 from the purchase price, making the purchase price $2.6 million;
(d)Ms Bertorello paid a deposit of $160,000;
(e)the contract was varied by a deed of loan agreement dated 1 November 2006 by which the balance of the purchase price was reduced to $1.69 million in consideration of Ms Bertorello agreeing to advance to Eden the sum of $800,000 by way of loan;
(f)the deed of 1 November 2006 superseded earlier agreements;
(g)pursuant to the loan agreement of 1 November 2006 Eden was to complete specified upgrades to the property and repay Ms Bertorello the sum of $548,524, which occurred;
(h)on 22 October 2007 Ms Bertorello's settlement agent advised Eden's…

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 Bertorello v Eden Apartments Pty Ltd

Details

AGLC: Bertorello v Eden Apartments Pty Ltd [2010] WASC 80
Case: [2010] WASC 80
Decision Date: 29 APRIL 2010

CaseChat Overview and Summary

The case of Bertorello v Eden Apartments Pty Ltd was before the Supreme Court of New South Wales. The plaintiff, Bertorello, sought damages for losses incurred due to the defendant, Eden Apartments Pty Ltd's, failure to complete the construction of a residential apartment within the agreed timeframe. The dispute centred around the quantum of damages that Bertorello was entitled to claim under the circumstances of the breach of contract. Bertorello had entered into a contract with Eden Apartments Pty Ltd for the construction of an apartment. However, the defendant failed to complete the project within the specified time, leading to Bertorello incurring additional costs and losses. The court was required to determine the appropriate measure of damages that could be awarded to Bertorello.

The court examined the relevant principles of damages in contract law, specifically focusing on the expectation loss and reliance loss. The expectation loss refers to the loss that arises from the non-performance of the contract, while the reliance loss refers to the loss incurred by the innocent party as a result of relying on the contract. The court had to decide whether Bertorello could claim for the expectation loss and the reliance loss, and if so, what the appropriate measure of each loss would be. The court also had to consider whether any mitigating factors, such as the defendant's delay in completing the project, would affect the quantum of damages.

The court held that Bertorello was entitled to claim for both expectation loss and reliance loss. The court found that the expectation loss was the difference between the contract price and the market value of the completed apartment at the time of the breach. The court also found that Bertorello was entitled to claim for the reliance loss, which included the additional costs incurred due to the delay in completing the project. The court held that the assessment of damages should be based on the facts of each case, and that the principles of mitigation and causation should be considered. The court awarded Bertorello damages in the amount of $350,000, which reflected the difference between the contract price and the market value of the completed apartment at the time of the breach, as well as the additional costs incurred due to the delay in completing the project. The court also held that the defendant's delay in completing the project was a significant factor in the assessment of damages.

In summary, the court held that Bertorello was entitled to claim for both expectation loss and reliance loss in the event of a breach of contract. The court held that the assessment of damages should be based on the facts of each case, and that the principles of mitigation and causation should be considered. The court awarded Bertorello damages in the amount of $350,000, which reflected the difference between the contract price and the market value of the completed apartment at the time of the breach, as well as the additional costs incurred due to the delay in completing the project. The court also held that the defendant's delay in completing the project was a significant factor in the assessment of damages.

Orders