DECISION: The Court orders: (1) Order 1 made by the Court below on 12 September 2008 (as varied by Orders 1 and 2 made by the Court below on 26 November 2008) be varied as follows: a. in paragraph (a), subparagraph (i),'$5,068,362’ be deleted and replaced with ‘$4,267,141’; and b. in paragraph (a), subparagraph (ii), ‘$6,374,772’ be deleted and replaced with ‘$6,699,637’; (2) Order 1 made by the Court below on 26 November 2008 be varied by deleting ‘$11,443,134.00’ and replacing it with ‘$10,966,778’; and (3) Within 21 days of the date of these Orders, by simultaneous exchange: a. Mr Crawley make a payment to Nabatu for the increase in value of Nabatu’s share in J & J O’Brien Pty Limited, together with interest at rates prescribed in Schedule 5 of the UCPR from 15 December 2008 up to the date of payment; and b. Nabatu make a payment to Mr Crawley for the decrease in value of Nabatu’s share in Marsico Holdings Pty Limited, together with interest at rates prescribed in Schedule 5 of the UCPR from 15 December 2008 up to the date of payment; c. The parties may agree, in advance of the simultaneous exchange of payments in paragraphs 3(a) and 3(b) above, to the netting of payments due to each other in accordance with paragraph (4) below. The Court notes that: (4) On 15 December 2008, Mr Crawley paid to Nabatu the sum of $11,540,453.32 in satisfaction of Order 1 made by the Court below on 12 September 2008 as varied by Order 1 made by the Court below on 26 November 2008. Accordingly, in order for the parties to comply with Order 3 above: a. Mr Crawley…
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
AGLC
Crawley v Short (No 2) [2010] NSWCA 97
Case
[2010] NSWCA 97
Decision Date
CaseChat Overview and Summary
In this appeal and cross-appeal, the parties were Mr. Crawley and Nabatu, concerning a dispute arising from a compulsory purchase order in relation to certain hotel properties. The matter was heard by Allsop P, Macfarlan and Young JJA in the Court of Appeal.
The primary legal issues before the Court of Appeal involved the correct basis for valuing the hotel properties subject to the compulsory purchase order, and the consequential adjustments to the amounts payable between the parties. This included determining the appropriate figures for the increase in value of Nabatu's share in J & J O’Brien Pty Limited and the decrease in value of Nabatu's share in Marsico Holdings Pty Limited.
The Court of Appeal varied the orders of the court below by adjusting the monetary amounts payable between Mr. Crawley and Nabatu. These adjustments reflected a revised valuation of the hotel properties. The Court ordered that Mr. Crawley pay Nabatu for the increase in value of Nabatu's share in J & J O’Brien Pty Limited, and Nabatu pay Mr. Crawley for the decrease in value of Nabatu's share in Marsico Holdings Pty Limited, with both payments to include interest from 15 December 2008. The Court also noted a previous payment made by Mr. Crawley and specified the net amounts to be paid by each party to satisfy the revised orders.
The Court ordered that the previous orders be varied to reflect the recalculated sums. Mr. Crawley was to pay Nabatu an additional sum of $324,865 plus interest, and Nabatu was to pay Mr. Crawley the sum of $801,221 plus interest, with both payments to be made within 21 days of the orders by simultaneous exchange, allowing for netting. There were no orders as to the costs of the appeal and cross-appeal.
Orders
Orders of the court
The Court orders:
(1) Order 1 made by the Court below on 12 September 2008 (as varied by Orders 1 and 2 made by the Court below on 26 November 2008) be varied as follows:
a. in paragraph (a), subparagraph (i),'$5,068,362’ be deleted and replaced with ‘$4,267,141’; and
b. in paragraph (a), subparagraph (ii), ‘$6,374,772’ be deleted and replaced with ‘$6,699,637’;
(2) Order 1 made by the Court below on 26 November 2008 be varied by deleting ‘$11,443,134.00’ and replacing it with ‘$10,966,778’; and
(3) Within 21 days of the date of these Orders, by simultaneous exchange:
a. Mr Crawley make a payment to Nabatu for the increase in value of Nabatu’s share in J & J O’Brien Pty Limited, together with interest at rates prescribed in Schedule 5 of the UCPR from 15 December 2008 up to the date of payment; and
b. Nabatu make a payment to Mr Crawley for the decrease in value of Nabatu’s share in Marsico Holdings Pty Limited, together with interest at rates prescribed in Schedule 5 of the UCPR from 15 December 2008 up to the date of payment;
c. The parties may agree, in advance of the simultaneous exchange of payments in paragraphs 3(a) and 3(b) above, to the netting of payments due to each other in accordance with paragraph (4) below.
The Court notes that:
(4) On 15 December 2008, Mr Crawley paid to Nabatu the sum of $11,540,453.32 in satisfaction of Order 1 made by the Court below on 12 September 2008 as varied by Order 1 made by the Court below on 26 November 2008. Accordingly, in order for the parties to comply with Order 3 above:
a. Mr Crawley is to pay to Nabatu the sum of $324,865 plus interest at rates prescribed in Schedule 5 of the UCPR from 15 December 2008 up to the date of payment; and
b. Nabatu is to pay to Mr Crawley the sum of $801,221 plus interest at rates prescribed in Schedule 5 of the UCPR from 15 December 2008 up to the date of payment; and
(5) There is to be no order as to the costs of the appeal and cross-appeal.