Jazabas v Botany Council - [2000] NSWSC 154

CITATION: Jazabas v Botany Council [2000] NSWSC 154

CURRENT JURISDICTION: Equity Division
Construction List

FILE NUMBER(S): SC 55043/1998

HEARING DATE(S): 03/03/00

JUDGMENT DATE: 14 March 2000

PARTIES :

Jazabas Pty Limited - Plaintiff
City of Botany Bay Council - Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr B.W. Rayment QC/Mr P.E. King - Plaintiff
Mr M.H. Tobias QC/Mr A.E. Galasso/Mr A.M. Pickles - Defendant

SOLICITORS: Segal Litton & Chilton - Plaintiff
Phillips Fox - Defendant

DECISION: 1. Judgment for the plaintiff in the sum of $1,218,832; 2. The defendant pay the plaintiff's costs; 3. Exhibits be returned at the expiration of 28 days unless, within that time, an appeal has been lodged.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION LIST

ROLFE J

TUESDAY, 14 MARCH 2000

55043/1998 - JAZABAS PTY LIMITED v CITY OF BOTANY BAY COUNCIL

ADDENDUM TO JUDGMENT
HIS HONOUR:

1    On 24 February 2000 I delivered my reasons for concluding that the plaintiff was entitled to a basic verdict against the Council in the sum of $900,550, and I continued:-

“To this figure there will have to be added interest and from this figure, perhaps, there will have to be made certain adjustments. I think it better for me to publish these reasons and then to allow the parties to argue those points or, hopefully, to agree upon them. I shall also hear submissions on costs.”

2    In this addendum to those reasons I shall deal with the further submissions made and my conclusions in relation to them, and I shall refer to the parties as in my original reasons.
3    The parties’ submissions have ranged over the various issues to which I have referred, and several others, viz an apparent mathematical error in the calculation of the number of developments the plaintiff would have built and the proper amount to be deducted in respect of the profit made on the sale of the land.

1. Error In Calculation

4    In paragraph 284 of my original reasons, the number of additional developments which, in my opinion, the plaintiff would have built was stated, and I said it totalled 9. In fact it totalled 11.
5    It was also submitted by the plaintiff that I should have had regard to the fact that Bas Developments Pty Limited, (“Bas”), would not have built the property at 29 Woomera Road during the 1994 year, because the plaintiff would have undertaken another development, which would have proved profitable. Mr Tobias submitted that if this approach was to be adopted it was necessary to offset the profit from that development. Mr Rayment submitted that this was not so because Bas and not the plaintiff carried out the development at 29 Woomera Road, and that the profits of Bas have been excluded from the claim for damages. He submitted that there was no occasion for any profit made on this project to be brought to account by the plaintiff.
6    The evidence satisfies me that Bas would not have proceeded…

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.

Continue reading Jazabas v Botany Council

Details

AGLC: Jazabas v Botany Council [2000] NSWSC 154
Case: [2000] NSWSC 154
Decision Date: 14 March 2000

CaseChat Overview and Summary

In the case of Jazabas Pty Limited versus City of Botany Bay Council, the plaintiff, a property developer, sought damages for losses incurred due to the defendant Council's alleged breaches of contract. The dispute centred on the Council's actions that led to the plaintiff's loss of a development opportunity on a property it had purchased. The case was heard by Rolfe J in the Equity Division of the Supreme Court of New South Wales.

The central legal issues involved the calculation of the damages owed to the plaintiff, specifically the number of developments the plaintiff would have undertaken, the deduction for profits made from the sale of the land, and the entitlement to interest and inflation adjustments on the damages awarded. The court had to determine whether the plaintiff's calculations of potential profits and losses were accurate and whether additional adjustments for inflation or interest were warranted.

In his judgment, Rolfe J corrected an error in the calculation of the number of developments, which was increased from 9 to 12, resulting in an adjusted base figure for damages. The court also revisited the profit deduction from the sale of the land and upheld the plaintiff's calculation, rejecting the defendant's arguments for a higher deduction. Regarding interest, the court found that as the damages assessed already included the use of profits for further developments, awarding interest would be inappropriate. The court similarly found no need to adjust for inflation as the damages calculation already accounted for it.

The final orders of the court were for the defendant to pay the plaintiff $1,218,832 in damages, with the plaintiff also to receive its costs from the defendant. The exhibits were to be returned within 28 days unless an appeal was lodged within that period.

Orders