Kimberley Developments Pty Ltd v Bale

Case [2024] NSWCA 131


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kimberley Developments Pty Ltd v Bale [2024] NSWCA 131
Hearing dates: 8 March 2024
Date of orders: 30 May 2024
Decision date: 30 May 2024
Before: Payne JA at [1];
White JA at [2];
Kirk JA at [17]
Decision:

(1) Amend order 2 made by Leeming JA on 18 August 2023 such that the figure of $317,458.62 is substituted for the identified figure of $301,560.99.

(2) The appeal is otherwise dismissed.

(3) The appellants’ application to adduce further evidence, filed on 16 February 2024, is dismissed.

(4) Appellants to pay 90% of the costs of the respondent in this Court.

Catchwords:

JUDGMENTS AND ORDERS – Proper construction of orders made by primary judge – Whether interest applied to amounts awarded under an order – Meaning of “the rate specified in the Suncorp mortgage” where two rates involved – Whether certain expenditures relating to rubbish removal and legal cost for dispute about land rating were properly referable to expenses reasonably incurred in the maintenance of property – Whether appellant entitled to allowance on GST paid with respect to maintenance expenses

Legislation Cited:

A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 23-5, 23-10

Civil Procedure Act 2005 (NSW), s 100

Supreme Court Act 1970 (NSW), s 75A(7)

Cases Cited:

Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317

Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

Texts Cited:

P Herzfeld and T Prince, Interpretation (Lawbook, 2nd edition, 2020)

Category:Principal judgment
Parties: Kimberley Developments Pty Ltd (First Appellant)
Albert Darwiche (Second Appellant)
Francoise Bale (Respondent)
Representation:

Counsel:
J Knackstredt (Appellants)
DP O’Connor (Respondent)

Solicitors:
Weinberger Lawyers (Appellants)
SCB Legal (Respondent)
File Number(s): 2023/294430
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division
Citation:

Bale v Kimberley Developments Pty Ltd (No 3) [2023] NSWSC 973

Date of Decision:
18 August 2023
Before:
Leeming JA
File Number(s):
2018/237019

HEADNOTE

[This headnote is not to be read as part of the judgment]

There has been a series of proceedings between the respondent and (among others) the appellants, Kimberley Developments Pty Ltd and Mr Albert Darwiche, arising from a dispute about the transfer of a commercial property (the Property) to Kimberley Developments in 2011 at a gross undervalue.

The primary judge, Ward P, set aside the transfer having found the transaction unconscionable. Her Honour made orders that a process be undertaken in unwinding the transaction to account for benefits obtained by either side. Kimberley Developments appealed but was largely unsuccessful. The Court of Appeal made consequential orders for the remaining accounting issues to be determined by a single judge in the Equity Division (remitter judge).

Kimberley Developments appealed the decision of the remitter judge, alleging that in construing or applying the orders made by the primary judge the remitter judge erred by: (1) finding…

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Kimberley Developments Pty Ltd v Bale [2024] NSWCA 131
Case
[2024] NSWCA 131
Decision Date

CaseChat Overview and Summary

Kimberley Developments Pty Ltd (the appellant) appealed to the Court of Appeal of the Supreme Court of New South Wales against orders made by a primary judge. The dispute concerned the proper construction of those orders, particularly regarding the application of interest to awarded amounts and the inclusion of certain expenses as reasonably incurred maintenance costs.

The Court of Appeal was required to determine whether interest applied to amounts awarded under the primary judge's order, and if so, at what rate, given that the specified "Suncorp mortgage" involved two different interest rates. Further, the Court had to consider whether expenditures for rubbish removal and legal costs related to a land rating dispute were properly referable to expenses reasonably incurred in the maintenance of the property. Finally, the Court was asked to determine if the appellant was entitled to an allowance for Goods and Services Tax (GST) paid on maintenance expenses.

The Court found that the primary judge's order regarding the principal sum was to be amended to reflect a higher figure. In relation to the interest, the Court determined that the phrase "the rate specified in the Suncorp mortgage" was ambiguous and, in the context of the primary judge's reasons, referred to the higher of the two rates. The Court also held that the rubbish removal costs were properly allowed as maintenance expenses, but the legal costs associated with the land rating dispute were not. The claim for GST allowance was dismissed.

Consequently, the Court ordered that the primary judge's order be amended to substitute a figure of $317,458.62 for the previously identified figure of $301,560.99. The appeal was otherwise dismissed, and the appellant's application to adduce further evidence was also dismissed. The appellant was ordered to pay 90% of the respondent's costs in the Court of Appeal.

Orders

Orders of the court

(1) Amend order 2 made by Leeming JA on 18 August 2023 such that the figure of $317,458.62 is substituted for the identified figure of $301,560.99.

(2) The appeal is otherwise dismissed.

(3) The appellants’ application to adduce further evidence, filed on 16 February 2024, is dismissed.

(4) Appellants to pay 90% of the costs of the respondent in this Court.

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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