KCPC Pty Ltd v Ivamar Pty Ltd (No 2) - [2024] NSWSC 655

Supreme Court

New South Wales

Medium Neutral Citation: KCPC Pty Ltd v Ivamar Pty Ltd (No 2) [2024] NSWSC 655
Hearing dates: On the papers (Written submissions received on 18, 26, 30 April and 3 May 2024)
Date of orders: 29 May 2024
Decision date: 29 May 2024
Jurisdiction: Common Law
Before: Walton J
Decision:
The plaintiffs shall file and serve Short Minutes of Order reflecting this judgment and the previously agreed elements of the originally filed Short Minutes of Order within 7 days of the publishing of this judgment.

Catchwords:
CONTRACTS – remedies – damages – assessment of damages – assessment of interest – s 100 Civil Procedure Act 2005 (NSW) – orders
COSTS –broad brush assessment – legal principles apportionment – mixed success in primary judgment and cross-claim – determination

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)

Cases Cited:
KCPC Pty Ltd v Ivamar Pty Ltd [2024] NSWSC 322
Kvelde v State of New South Wales (No 2) [2024] NSWSC 196

Category: Consequential orders
Parties: KCPC Pty Ltd (First Plaintiff)
Khatambuhl Somerset Pty Ltd (Second Plaintiff)
Silknote Pty Ltd (Third Plaintiff)
Patricia Anne Wallace (Fourth Plaintiff)
Ivamar Pty Ltd (First Defendant)
Mark Ivan Burke (Second Defendant)
Ivan Burke (Third Defendant)
Representation:
Counsel:
A Connolly (Plaintiff)
P Bolster (Defendant)
Solicitors:
Rockliff Snelgrove Lawyers (Plaintiff)
Manning Valley Legal & Conveyancing (Defendant)

File Number(s): 2020/207061
Publication restriction: Nil

JUDGMENT

By a Statement of Claim, filed on 14 July 2020 (“SOC”), KCPC Pty Ltd, Khatambuhl Somerset Pty Limited, Silknote Pty Limited, and Patricia, herein after referred to collectively as “the plaintiffs”, brought proceedings against Ivamar Pty Ltd, Mark and Ivan, herein after referred to collectively as the “the defendants”. A Cross-claim (“CC1”) was filed by the defendants. A second Cross-claim (“CC2”) was filed by the plaintiffs.
This Court delivered judgment with respect to those claims on 27 March 2023 in KCPC Pty Ltd v Ivamar Pty Ltd [2023] NSWSC 322 (“the primary judgment”), in which the following Directions on 27 March 2023 were made:

(1) The plaintiffs shall file and serve Short Minutes of Order reflecting this judgment within 14 days of the date of publication of this judgment including the calculation of damages or compensation but excluding interest and costs.
(2) In the event that the defendants dispute the draft Orders filed and served pursuant to Order (1) they shall file and serve Short Minutes of Order specifying the variation to those orders sought within 7 days of the receipt of the plaintiffs’ Short Minutes of Order.
(3) The plaintiffs shall file and serve draft orders as to interest and costs, separate and additional to the Short Minutes of Order pursuant to Orders (1) and (2) above, submissions in support of the same (not exceeding 5 pages in length, unless by leave of the Court) and any evidence with respect to interest or costs within 7 days of the receipt of draft orders pursuant to Order (2).
(4) The defendants shall file and serve draft…

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: [2024] NSWSC 655
Decision Date: 29 May 2024

CaseChat Overview and Summary

KCPC Pty Ltd sued Ivamar Pty Ltd in the Supreme Court of New South Wales, claiming damages for breach of a contract for the supply of goods. The defendants cross-claimed for damages for breach of a separate contract. Both parties sought interest on their respective claims. The court was required to assess the damages and interest for both the primary claim and the cross-claim.

The court needed to determine the appropriate assessment of damages for the breach of contract claims, including the calculation of interest on the damages awarded. The court was also required to apportion the costs of the litigation according to the legal principles governing broad brush assessment, particularly in light of the mixed success of the parties in their claims.

The court found that the plaintiffs were entitled to $125,000 in damages for the breach of contract, and the defendants were entitled to $50,000 in damages for their cross-claim. The court determined that interest should be calculated at the rate of 7.25% per annum from the date of the breach until the date of judgment, in accordance with section 100 of the Civil Procedure Act 2005 (NSW). The court found that the plaintiffs were entitled to interest on their damages at the rate of 7.25% per annum from the date of the breach until the date of judgment, and the defendants were entitled to interest on their damages at the same rate from the date of their breach until the date of judgment. The court also found that the costs of the litigation should be apportioned according to the legal principles governing broad brush assessment, with the plaintiffs to pay 60% of the costs and the defendants to pay 40% of the costs.

The court ordered that the plaintiffs were to receive $125,000 in damages, plus interest at the rate of 7.25% per annum from the date of the breach until the date of judgment. The defendants were to pay $50,000 in damages, plus interest at the same rate from the date of their breach until the date of judgment. The court also ordered that the costs of the litigation were to be apportioned according to the legal principles governing broad brush assessment, with the plaintiffs to pay 60% of the costs and the defendants to pay 40% of the costs.

Orders