Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
Hearing dates:
2 February 2023
Decision date:
22 February 2023
Before:
Leeming JA at [1]; Kirk JA at [106]; Griffiths AJA at [107]
Decision:
(1) Appeal dismissed in respect of grounds 1-8.
(2) Direct the parties to file and serve within 14 days of today orders by consent or alternatively the orders for which they contend and submissions not exceeding four pages in support thereof, with further submissions to be filed and served within 21 days of today not exceeding two pages in length in response, with a view to this Court making orders for further steps to be taken in this appeal.
Catchwords:
APPEAL – challenge to factual findings – transfer of land – where defendants contended that consideration provided by $302,000 in banknotes – no documentary records available – whether primary judge erred in finding defendants’ case not established
PLEADINGS – vendor executed joint venture agreement with sole director and shareholder of purchaser – no shares issued to purchaser in accordance with agreement – plaintiff sued for breach of contract – no challenge to finding by primary judge that joint venture agreement not contractual – primary judge found that purchaser represented to vendor that the land would be developed in accordance with joint venture agreement – no case based on misrepresentation pleaded – whether open to primary judge to make findings based on unpleaded case – unpleaded case was opened and cross-examined upon without objection – parties to be taken to have litigated unpleaded case
EQUITY – unconscionable conduct – special disadvantage – whether primary judge erred in finding defendants unconscientiously exploited special disadvantage known to them – orders in nature of rescission – need to bring to account payment made by one defendant whose claim was compromised prior to trial
[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
AGLC
Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
Case
[2023] NSWCA 25
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 findings made by the primary judge in proceedings brought by Bale (the respondent). The dispute concerned the transfer of land, with the appellant contending that the consideration provided was $302,000 in banknotes, a claim lacking documentary records. The respondent also sued for breach of contract arising from a joint venture agreement, where the appellant, through its sole director and shareholder, had agreed to develop land with the respondent. No shares were issued to the respondent as per the agreement, and the primary judge found the joint venture agreement itself was not contractual. However, the primary judge found that the appellant had represented to the respondent that the land would be developed in accordance with the joint venture agreement.
The Court of Appeal was required to determine several legal issues. Firstly, whether the primary judge erred in finding that the appellant's case regarding the $302,000 consideration was not established, given the absence of documentary evidence. Secondly, the Court considered whether it was open to the primary judge to make findings based on a case of misrepresentation, which had not been formally pleaded. This issue arose because the unpleaded case had been opened and cross-examined upon without objection during the trial. Finally, the Court had to determine whether the primary judge erred in finding that the appellant had unconscientiously exploited a special disadvantage of the respondent, and whether orders in the nature of rescission were appropriate, requiring an account of payments made by a defendant whose claim had been compromised before trial.
The Court of Appeal dismissed the appeal in respect of grounds 1-8. The reasoning involved a careful consideration of the evidence presented at trial, particularly concerning the appellant's claim for the banknote payment. The Court applied the principle that where an unpleaded case is litigated by the parties without objection, it is open to the court to make findings on that basis. The Court also applied equitable principles concerning unconscionable conduct and special disadvantage, assessing whether the appellant's actions met the threshold for such a finding.
Consequently, the Court of Appeal directed the parties to file and serve within 14 days of the judgment either orders by consent or their proposed orders and supporting submissions, not exceeding four pages. Further submissions in response, not exceeding two pages, were to be filed and served within 21 days thereafter, with a view to the Court making further orders regarding the conduct of the appeal.
Orders
Orders of the court
(1) Appeal dismissed in respect of grounds 1-8.
(2) Direct the parties to file and serve within 14 days of today orders by consent or alternatively the orders for which they contend and submissions not exceeding four pages in support thereof, with further submissions to be filed and served within 21 days of today not exceeding two pages in length in response, with a view to this Court making orders for further steps to be taken in this appeal.