CITATION: James v Hill [2004] NSWCA 301 revised - 22/09/2004 HEARING DATE(S): 29 July 2004 JUDGMENT DATE:
17 September 2004JUDGMENT OF: Sheller JA at 1; Hodgson JA at 2; Tobias JA at 3 DECISION: (a) Appeal of the first appellant allowed in part; (b) Appeal of the second appellant dismissed; (c) Set aside Order 1 made by Bergin J on 26 February 2004; (d) The respondent pay 60% of the first appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified; (e) The first cross-appeal be dismissed; (f) The cross-appellant pay the first cross-respondent's costs of the first cross-appeal; (g) The second cross-appeal be dismissed; (h) The cross-appellants pay the cross-respondent's costs of the second cross-appeal CATCHWORDS: Contracts - Election - Seeking specific performance - Damages - Exemplary damages - Victim's own wrongdoing - Un-associated third party - Analogy to 'clean hands' - Mitigation - Damages - Exemplary damages - Solicitor assists wrongdoer - Reprehensibility of conduct - Increased when occurs in legal practice - Professional disciplinary hearing - Double punishment - Equity - Relief against forfeiture - Deposit - Unconscionable conduct - Connection and causation - Whether penalty LEGISLATION CITED: Nil CASES CITED: Gray v Motor Accident Commission (1998) 196 CLR 1
Lamb v Cotogno (1987) 164 CLR 1
Ciavarella v Balmer (1983) 153 CLR 438
Tanwar Enterprises Pty Ltd v Cauci [2003] 77 ALJR 1853
Romanos v Pentagold Investments Pty Ltd (2003) 77 ALJR 1882
Sargent v ASL Developments Ltd (1974) 131 CLR 634
XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd (1985) 155 CLR 448
Harris v Digital Pulse Pty Limited (2003) 56 NSWLR 298
Dewhirst v Edwards [1983] 1NSWLR 34
Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWCA 338PARTIES :
David Anthony James
David George Brooks
Terry Donald HillFILE NUMBER(S): CA 40170/04 COUNSEL: A: C R C Newlinds SC / D A Allen
R: M R Aldridge SC / R GlassonSOLICITORS: A: Catalyst Partners, Newcastle
R: Eddy & Moloney, Paddington
LOWER COURTJURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 50149/02 LOWER COURT
JUDICIAL OFFICER :Bergin J
CA 40170/04
Friday 17 September 2004SHELLER JA
HODGSON JA
TOBIAS JA
DAVID ANTHONY JAMES & ANOR v TERRY DONALD HILL
Hill wished to acquire a wine business from a liquidator. The liquidator was not prepared to deal with Hill. As a result Hill organised that James would purchase the business from the liquidator and contemporaneously on-sell it to Hill at the same price. It was understood that James would be buying and on-selling the business for $10.3 million. James and Hill then entered a contract to this effect. It was a term of the contract that Hill was to pay the deposit for the sale between James and the liquidator (the deposit). It was also a term that if Hill were unable to complete (in which case James would not purchase the business from the…
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- AGLC
- James v Hill [2004] NSWCA 301
- Case
- [2004] NSWCA 301
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal involved the principles of election in contract law, specifically whether a party seeking specific performance was precluded from also claiming damages. The court also considered the availability and appropriateness of exemplary damages, particularly in circumstances where the victim of the wrongdoing may have also engaged in unassociated misconduct, drawing an analogy to the equitable doctrine of "clean hands." Furthermore, the court examined the principles of mitigation of loss and the concept of unconscionable conduct in relation to relief against forfeiture of a deposit, and whether a contractual provision constituted a penalty. The conduct of a solicitor assisting a wrongdoer, and whether such conduct warranted an increase in damages due to its occurrence within legal practice, was also a point of contention.
The Court of Appeal's reasoning addressed the interplay between seeking equitable relief and claiming damages, noting that in certain circumstances, a party might pursue both. The court considered the reprehensibility of the conduct in question, particularly when it involved a legal professional, and whether this warranted a higher award of damages, while also acknowledging the potential for "double punishment" if such conduct was also subject to professional disciplinary proceedings. The court applied principles of equity and contract law to determine whether the deposit was subject to forfeiture and whether the circumstances justified relief against such forfeiture, considering the connection and causation between the parties' actions and the alleged unconscionable conduct.
The Court of Appeal allowed the appeal of the first appellant in part, while dismissing the appeal of the second appellant. Orders made by Bergin J on 26 February 2004 were set aside. The respondent was ordered to pay 60% of the first appellant's costs of the appeal, with a provision for a certificate under the Suitor's Fund Act 1951 if qualified. Both cross-appeals were dismissed, with costs ordered in favour of the cross-respondents.
Orders
Orders of the court
(a) Appeal of the first appellant allowed in part; (b) Appeal of the second appellant dismissed; (c) Set aside Order 1 made by Bergin J on 26 February 2004; (d) The respondent pay 60% of the first appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified; (e) The first cross-appeal be dismissed; (f) The cross-appellant pay the first cross-respondent's costs of the first cross-appeal; (g) The second cross-appeal be dismissed; (h) The cross-appellants pay the cross-respondent's costs of the second cross-appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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