Galati v GC NSW Pty Ltd (No 2) - [2020] NSWSC 420

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Galati v GC NSW Pty Ltd (No 2) [2020] NSWSC 420
Hearing dates: On the papers
Date of orders: 20 April 2020
Decision date: 20 April 2020
Jurisdiction: Equity
Before: Robb J
Decision:
Orders:

(1) Enter judgment and verdict for the first plaintiff against the first defendant for damages of $10,979.41 plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) to the date of judgment of $1,683.70.
(2) Order the defendants to pay the plaintiffs' costs of the proceedings on the ordinary basis.
Catchwords:
CONTRACTS — Terms — Classification of terms – where evidence required to demonstrate claim of interest in agreement
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – where an extraneous term is required in the Calderbank offer – where not unreasonable for a party to reject that offer
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Galati v GC NSW Pty Ltd [2020] NSWSC 217
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124
Category: Costs
Parties: Marcellina Galati (first plaintiff)
VM Galati Super Fund Pty Ltd, ACN 617 338 548, as Trustee for VM Galati Super Fund (second plaintiff)
Caterina Galati (third plaintiff)
BMG Riverstone Pty Ltd, ACN 617 339 858, as Trustee for BMG Riverstone Property Trust (fourth plaintiff)
Francesco Camera (fifth plaintiff)
Barbara Camera (sixth plaintiff)
Gregorio Galati (seventh plaintiff)
Celeste Levingson (eighth plaintiff)
GC NSW Pty Ltd (first defendant)
Greencapital Development Pty Ltd (second defendant)
Representation:
Counsel: M Bennett (first to eighth plaintiffs)
J Potts SC / A Langshaw (first and second defendants)
Solicitors: Coleman Greig Lawyers (first to eighth plaintiffs)
Atkinson Vinden Lawyers (first and second defendants)

File Number(s): 2018 / 265104

Judgment

On 12 March 2020, the Court delivered the primary judgment in this matter: Galati v GC NSW Pty Ltd [2020] NSWSC 217.
There are two questions that remain to be decided.

Mrs Galati’s damages claim for interest

First, at [390] of the primary judgment, I observe that the subsidiary terms of the 17 March 2017 Agreement included an obligation on GC NSW to continue to pay, on behalf of Mrs Galati, the interest on the Galati home loan. However, at [391], I observed that I could not find the evidence that established that the amount of unpaid interest was $10,979.41, as claimed by Mrs Galati
The Court made orders following the delivery of the primary judgment on 25 March 2020, after the parties had brought in short minutes of order to give effect to the reasons for judgment. Orders 3 and 5 provided for the parties to deliver submissions concerning the resolution of the…

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: [2020] NSWSC 420
Decision Date: 20 April 2020

CaseChat Overview and Summary

Galati v GC NSW Pty Ltd (No 2) involves a dispute between the parties concerning the interpretation and classification of terms within a contract. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the respondent had breached the contract by failing to grant the applicant a claim of interest in the agreement. The court also had to determine whether the respondent was entitled to costs based on a Calderbank offer made by the applicant.

The court first addressed the issue of the classification of terms within the contract. The applicant argued that certain terms should be considered collateral warranties, which would entitle them to a claim of interest in the agreement. The court considered the evidence provided by the applicant and concluded that the terms were not collateral warranties, as the evidence did not support the applicant's claim. The court held that the terms in question were not collateral warranties, and therefore, the applicant was not entitled to a claim of interest in the agreement.

The court then turned to the issue of costs. The applicant made a Calderbank offer to the respondent, which included an extraneous term that was not related to the merits of the case. The respondent rejected the offer, and the applicant sought costs based on the offer. The court considered whether it was unreasonable for the respondent to reject the offer and concluded that it was not unreasonable to do so, given the presence of the extraneous term. The court held that the respondent was not liable for costs based on the Calderbank offer.

In summary, the court held that the applicant was not entitled to a claim of interest in the agreement and that the respondent was not liable for costs based on the Calderbank offer. The court's decision provides guidance on the classification of terms within a contract and the circumstances in which a Calderbank offer may be rejected.

Orders