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:
Solicitors:
J Knackstredt (Appellants)
DP O’Connor (Respondent)
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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- AGLC
- Kimberley Developments Pty Ltd v Bale [2024] NSWCA 131
- Case
- [2024] NSWCA 131
- Decision Date
CaseChat Overview and Summary
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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