Bullabidgee Pty Ltd v McCleary (No 2) - [2011] NSWCA 343

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Hearing dates: On the papers
Decision date: 09 November 2011
Before: Allsop P at 1
Basten JA at 1
Young JA at 1
Decision:
1.Appeal allowed in part.
2.The unnumbered third order made by the Court on 19 April 2010 dismissing the further amended statement of claim of Bullabidgee Pty Ltd ACN 125 772 483, Towool Pty Ltd ACN 125 772 821, Towool West Pty Ltd ACN 125 772 670, Towool Water Pty Ltd ACN 125 772 723, Warrawool Pty Ltd ACN 125 772 769, Warrawool North Pty Ltd ACN 125 772 796, Warrawool Water Pty Ltd 125 772 778, MHD Echuca Pty Ltd ACN 108 901 579 and Mr Ian Tayles (the "purchasers") be set aside.
3.The declaration numbered 4 made by the Court on 19 April 2010 as to the entitlement of Mr Brian John McCleary and Mr Peter Joseph Rae (the "vendors") to forfeit the deposits be set aside.
4.The unnumbered order made by the Court on 19 April 2010 that the purchasers pay the vendors' costs of the proceedings at first instance be set aside.
5.Set aside the unnumbered judgment of 19 April 2010 and in place thereof give judgment for the purchasers (other than MHD Echuca Pty Ltd ACN 108 801 579 and Mr Ian Tayles) against the vendors in the sum of $183,404.33, such judgment to take effect on 20 April 2010.
6.The further amended statement of claim filed by the purchasers be otherwise dismissed.
7.The appellants pay 20 per cent of the respondents' costs of the proceedings at first instance.
8.The respondents pay 50 per cent of the appellants' costs of the appeal.
9.The parties have leave to file within 14 days a notice of motion to vary, or consent orders varying, the terms of these orders.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: ORDERS - costs - no question of principle.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98(1), 100, 101
Uniform Civil Procedure Rules 2005 (NSW), Pt 42, r 42.1, Pt 36, r 36.7
Cases Cited: Ohn v Walton (1995) 36 NSWLR 77
Category: Consequential orders
Parties: Bullabidgee Pty Ltd (First Appellant)
Towool Pty Ltd (Second Appellant)
Towool West Pty Ltd (Third Appellant)
Towool Water Pty Ltd (Fourth Appellant)
Warrawool Pty Ltd (Fifth Appellant)
Warrawool North Pty Ltd (Sixth Appellant)
Warrawool Water Pty Ltd (Seventh Appellant)
MHD Echuca Pty Ltd (Eighth Appellant)
Ian Tayles (Ninth Appellant)
Brian John McCleary & Peter Joseph Rae (First Respondent)
JP & M Kerr (Billabidgee) Pty Ltd (Second Respondent)
Bullatale Pastoral Pty…

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.

Keep reading for free

Create a free CaseChat account to read Bullabidgee Pty Ltd v McCleary (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWCA 343
Decision Date: 09 November 2011

CaseChat Overview and Summary

In *Bullabidgee Pty Ltd v McCleary (No 2)*, the New South Wales Court of Appeal considered an appeal by purchasers against orders made by the Supreme Court of New South Wales. The dispute concerned the dismissal of the purchasers' further amended statement of claim, a declaration regarding the vendors' entitlement to forfeit deposits, and an order for the purchasers to pay the vendors' costs of the proceedings at first instance.

The primary legal issues before the Court of Appeal were whether the primary judge erred in dismissing the purchasers' claim and in declaring the vendors entitled to forfeit the deposits. The court was also required to determine the appropriate orders regarding the costs of the proceedings at first instance and the costs of the appeal.

The Court of Appeal allowed the appeal in part, setting aside the orders of the Supreme Court that dismissed the purchasers' amended statement of claim, declared the vendors' entitlement to forfeit deposits, and ordered the purchasers to pay the vendors' costs. The court substituted its own judgment, ordering that the purchasers (excluding two named entities) recover a specific sum from the vendors, with that judgment taking effect on a particular date. The court also ordered that the purchasers pay a proportion of the vendors' costs at first instance, and the vendors pay a proportion of the purchasers' costs of the appeal, with leave granted for parties to seek variations to these orders.

Orders

Orders of the court

1.Appeal allowed in part.

2.The unnumbered third order made by the Court on 19 April 2010 dismissing the further amended statement of claim of Bullabidgee Pty Ltd ACN 125 772 483, Towool Pty Ltd ACN 125 772 821, Towool West Pty Ltd ACN 125 772 670, Towool Water Pty Ltd ACN 125 772 723, Warrawool Pty Ltd ACN 125 772 769, Warrawool North Pty Ltd ACN 125 772 796, Warrawool Water Pty Ltd 125 772 778, MHD Echuca Pty Ltd ACN 108 901 579 and Mr Ian Tayles (the "purchasers") be set aside.

3.The declaration numbered 4 made by the Court on 19 April 2010 as to the entitlement of Mr Brian John McCleary and Mr Peter Joseph Rae (the "vendors") to forfeit the deposits be set aside.

4.The unnumbered order made by the Court on 19 April 2010 that the purchasers pay the vendors' costs of the proceedings at first instance be set aside.

5.Set aside the unnumbered judgment of 19 April 2010 and in place thereof give judgment for the purchasers (other than MHD Echuca Pty Ltd ACN 108 801 579 and Mr Ian Tayles) against the vendors in the sum of $183,404.33, such judgment to take effect on 20 April 2010.

6.The further amended statement of claim filed by the purchasers be otherwise dismissed.

7.The appellants pay 20 per cent of the respondents' costs of the proceedings at first instance.

8.The respondents pay 50 per cent of the appellants' costs of the appeal.

9.The parties have leave to file within 14 days a notice of motion to vary, or consent orders varying, the terms of these orders.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343
Hearing dates:	On the papers
Decision date:	09 November 2011
Before:	Allsop P at 1 Basten JA at 1 Young JA at 1
Decision:	1.Appeal allowed in part. 2.The unnumbered third order made by the Court on 19 April 2010 dismissing the further amended statement of claim of Bullabidgee Pty Ltd ACN 125 772 483, Towool Pty Ltd ACN 125 772 821, Towool West Pty Ltd ACN 125 772 670, Towool Water Pty Ltd ACN 125 772 723, Warrawool Pty Ltd ACN 125 772 769, Warrawool North Pty Ltd ACN 125 772 796, Warrawool Water Pty Ltd 125 772 778, MHD Echuca Pty Ltd ACN 108 901 579 and Mr Ian Tayles (the "purchasers") be set aside. 3.The declaration numbered 4 made by the Court on 19 April 2010 as to the entitlement of Mr Brian John McCleary and Mr Peter Joseph Rae (the "vendors") to forfeit the deposits be set aside. 4.The unnumbered order made by the Court on 19 April 2010 that the purchasers pay the vendors' costs of the proceedings at first instance be set aside. 5.Set aside the unnumbered judgment of 19 April 2010 and in place thereof give judgment for the purchasers (other than MHD Echuca Pty Ltd ACN 108 801 579 and Mr Ian Tayles) against the vendors in the sum of $183,404.33, such judgment to take effect on 20 April 2010. 6.The further amended statement of claim filed by the purchasers be otherwise dismissed. 7.The appellants pay 20 per cent of the respondents' costs of the proceedings at first instance. 8.The respondents pay 50 per cent of the appellants' costs of the appeal. 9.The parties have leave to file within 14 days a notice of motion to vary, or consent orders varying, the terms of these orders. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ORDERS - costs - no question of principle.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 98(1), 100, 101 Uniform Civil Procedure Rules 2005 (NSW), Pt 42, r 42.1, Pt 36, r 36.7
Cases Cited:	Ohn v Walton (1995) 36 NSWLR 77
Category:	Consequential orders
Parties:	Bullabidgee Pty Ltd (First Appellant) Towool Pty Ltd (Second Appellant) Towool West Pty Ltd (Third Appellant) Towool Water Pty Ltd (Fourth Appellant) Warrawool Pty Ltd (Fifth Appellant) Warrawool North Pty Ltd (Sixth Appellant) Warrawool Water Pty Ltd (Seventh Appellant) MHD Echuca Pty Ltd (Eighth Appellant) Ian Tayles (Ninth Appellant) Brian John McCleary & Peter Joseph Rae (First Respondent) JP & M Kerr (Billabidgee) Pty Ltd (Second Respondent) Bullatale Pastoral Pty…