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James v Surf Road Nominees Pty Ltd (No 2)

James v Surf Road Nominees Pty Ltd (No 2)

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CITATION:
JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [NO. 2] [2005] NSWCA 296

HEARING DATE(S):
On papers

JUDGMENT DATE:

2 September 2005

JUDGMENT OF:
Beazley JA; Tobias JA; McColl JA

DECISION:
1. Order that the appeal be allowed in part.; 2. Set aside Orders 1, 2, 5 and 6 made by the trial judge on 5 August 2004.; 3. Set aside the Declarations in paras. 7, 8 and 9 of the Orders made on 5 April 2004.; 4. Order that there be a verdict and judgment in favour of the third appellant against the fourth and eighth respondents in the sum of $189,326.00 together with interest calculated from 22 October 2002 to the date of judgment at first instance. Thereafter, interest is payable in accordance with the Court Rules.; 5. Set aside Orders 11 and 12 made by the trial judge on 5 April 2004 ; 6. Set aside Order 3 made by the Court on 21 December 2004.; 7. Order that the first, second, third, fourth and eighth respondents pay 90% of the second appellant's costs of the appeal.; 8. Order that the second appellant pay the fifth, sixth and seventh respondents costs of the appeal limited to 10% of the costs incurred on a party/party basis incurred by the respondents on the appeal.; 9. Order that the first, fourth and eighth respondents pay the third appellant's costs of the appeal to the extent that it incurred any costs additional to the costs incurred by the second appellant.; 10. Order that the appellants pay 10% of the first, second, third, fourth and eighth respondents costs of the appeal.; 11. Order that the first, second, third, fourth and eighth respondents pay 80% of the second and third appellants costs of the summons.; 12. The first, fourth and eighth respondents pay the third appellant's costs incurred additionally in relation to the issue of the wrongful exercise of the power of sale.; 13. The second appellant is to pay 10% of the fifth, sixth and seventh respondents costs of the cross-claim

CATCHWORDS:
Final orders - costs

PARTIES:
Tass Alexander James (First Appellant)
Janet Margaret James (Second Appellant)
New South Head Nominees Pty. Limited (ACN 088 322 472) (Third Appellant)
Surf Road Nominees Pty. Limited (ACN 087 719 060) (First Respondent)
Chris Burke & Co. Pty. Limited (ACN 062 554 849) (Second Respondent)
I.G. Martyn Real Estate Pty. Limited (ACN 001 210 304) (Third Respondent)
WIT Investments Pty. Limited (ACN 087 762 856) (Fourth Respondent)
Vincent Palmieri (Fifth Respondent)
Terry Ian Wilson (Sixth Respondent)
Andrew Peter Mortimer (Seventh Respondent)

FILE NUMBER(S):
CA 40330/04

COUNSEL:
C.R.C. Newlinds SC/A.P. Coleman (Appellants)
T. Alexsis SC/K. Sainsbury (Respondents)

SOLICITORS:
The Argyle Partnership (Appellants)
Fitzpatrick Solicitors (Respondents)

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
ED 50108/2001

LOWER COURT JUDICIAL OFFICER:
Einstein J

CA 40330/04
ED 50108/01

BEAZLEY JA
TOBIAS JA
McCOLL JA
2 September 2005

JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED

(ACN 087 719 060) &…

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: [2005] NSWCA 296
Decision Date: 2 September 2005

CaseChat Overview and Summary

The appeal concerned a dispute between James (the second appellant) and Surf Road Nominees Pty Ltd (the first respondent), and other parties including the third appellant. The case came before the New South Wales Court of Appeal.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in their findings regarding certain declarations and orders made in the primary proceedings, and consequently, the appropriate orders for costs.

The Court of Appeal allowed the appeal in part, setting aside several of the trial judge's orders and declarations. Crucially, the Court entered a verdict and judgment in favour of the third appellant against the fourth and eighth respondents for a sum of $189,326.00, plus interest. The Court also made detailed orders regarding the costs of the appeal and the summons, reflecting the partial success of the appellants and the various parties involved.

Orders

Orders of the court

1. Order that the appeal be allowed in part.; 2. Set aside Orders 1, 2, 5 and 6 made by the trial judge on 5 August 2004.; 3. Set aside the Declarations in paras. 7, 8 and 9 of the Orders made on 5 April 2004.; 4. Order that there be a verdict and judgment in favour of the third appellant against the fourth and eighth respondents in the sum of $189,326.00 together with interest calculated from 22 October 2002 to the date of judgment at first instance. Thereafter, interest is payable in accordance with the Court Rules.; 5. Set aside Orders 11 and 12 made by the trial judge on 5 April 2004 ; 6. Set aside Order 3 made by the Court on 21 December 2004.; 7. Order that the first, second, third, fourth and eighth respondents pay 90% of the second appellant's costs of the appeal.; 8. Order that the second appellant pay the fifth, sixth and seventh respondents costs of the appeal limited to 10% of the costs incurred on a party/party basis incurred by the respondents on the appeal.; 9. Order that the first, fourth and eighth respondents pay the third appellant's costs of the appeal to the extent that it incurred any costs additional to the costs incurred by the second appellant.; 10. Order that the appellants pay 10% of the first, second, third, fourth and eighth respondents costs of the appeal.; 11. Order that the first, second, third, fourth and eighth respondents pay 80% of the second and third appellants costs of the summons.; 12. The first, fourth and eighth respondents pay the third appellant's costs incurred additionally in relation to the issue of the wrongful exercise of the power of sale.; 13. The second appellant is to pay 10% of the fifth, sixth and seventh respondents costs of the cross-claim

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.

CITATION:	JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [NO. 2] [2005] NSWCA 296
HEARING DATE(S):	On papers
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	Beazley JA; Tobias JA; McColl JA
DECISION:	1. Order that the appeal be allowed in part.; 2. Set aside Orders 1, 2, 5 and 6 made by the trial judge on 5 August 2004.; 3. Set aside the Declarations in paras. 7, 8 and 9 of the Orders made on 5 April 2004.; 4. Order that there be a verdict and judgment in favour of the third appellant against the fourth and eighth respondents in the sum of $189,326.00 together with interest calculated from 22 October 2002 to the date of judgment at first instance. Thereafter, interest is payable in accordance with the Court Rules.; 5. Set aside Orders 11 and 12 made by the trial judge on 5 April 2004 ; 6. Set aside Order 3 made by the Court on 21 December 2004.; 7. Order that the first, second, third, fourth and eighth respondents pay 90% of the second appellant's costs of the appeal.; 8. Order that the second appellant pay the fifth, sixth and seventh respondents costs of the appeal limited to 10% of the costs incurred on a party/party basis incurred by the respondents on the appeal.; 9. Order that the first, fourth and eighth respondents pay the third appellant's costs of the appeal to the extent that it incurred any costs additional to the costs incurred by the second appellant.; 10. Order that the appellants pay 10% of the first, second, third, fourth and eighth respondents costs of the appeal.; 11. Order that the first, second, third, fourth and eighth respondents pay 80% of the second and third appellants costs of the summons.; 12. The first, fourth and eighth respondents pay the third appellant's costs incurred additionally in relation to the issue of the wrongful exercise of the power of sale.; 13. The second appellant is to pay 10% of the fifth, sixth and seventh respondents costs of the cross-claim

CATCHWORDS:	Final orders - costs
PARTIES:	Tass Alexander James (First Appellant) Janet Margaret James (Second Appellant) New South Head Nominees Pty. Limited (ACN 088 322 472) (Third Appellant) Surf Road Nominees Pty. Limited (ACN 087 719 060) (First Respondent) Chris Burke & Co. Pty. Limited (ACN 062 554 849) (Second Respondent) I.G. Martyn Real Estate Pty. Limited (ACN 001 210 304) (Third Respondent) WIT Investments Pty. Limited (ACN 087 762 856) (Fourth Respondent) Vincent Palmieri (Fifth Respondent) Terry Ian Wilson (Sixth Respondent) Andrew Peter Mortimer (Seventh Respondent)
FILE NUMBER(S):	CA 40330/04
COUNSEL:	C.R.C. Newlinds SC/A.P. Coleman (Appellants) T. Alexsis SC/K. Sainsbury (Respondents)
SOLICITORS:	The Argyle Partnership (Appellants) Fitzpatrick Solicitors (Respondents)

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 50108/2001
LOWER COURT JUDICIAL OFFICER:	Einstein J