Kimberley Developments Pty Ltd v Bale (No 2)

Case [2023] NSWCA 95


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kimberley Developments Pty Ltd v Bale (No 2) [2023] NSWCA 95
Hearing dates: On the papers
Decision date: 16 May 2023
Before: Leeming JA; Kirk JA; Griffiths AJA
Decision:

1. Discharge the existing stay of the orders made on 23 June 2022.

2. Note that the effect of order 1 above is that Kimberley Developments is to transfer unencumbered title to the Forest Lodge Property to Ms Bale within 28 days of today.

3. Set aside orders 9, 12 and 17 made on 23 June 2022 insofar as those orders were directed to a Court appointed referee, and in lieu thereof remit the balance of the proceeding to the Equity Division, with a view that there will be a further hearing of the issues raised on the submissions exchanged by the parties before a single judge who is a member of this Court, at a date to be fixed but in the expectation that it will be in some 6-8 weeks hence.

4. Grant liberty to the parties to apply to the judge before whom the balance of the proceeding is to be heard on three clear working days’ notice.

Catchwords:

PROCEDURE – orders – reconveyance of land held on constructive trust for plaintiff/respondent – dispute as to calculation of allowances for expenses – disputed fresh evidence – one party requested oral hearing – stay of orders requiring reconveyance of land lifted and proceedings remitted to single judge

Cases Cited:

Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820

Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25

Category:Consequential orders
Parties: Kimberley Developments Pty Ltd (First Appellant)
Theofanis Trigas (Second Appellant)
Super Start Batteries Pty Ltd (Third Appellant)
Albert Darwiche (Fourth Appellant)
Francoise Bale (Respondent)
Representation:

Counsel:
R Perla (Appellants)
D P O’Connor (Respondent)

Solicitors:
Weinberger Lawyers (Appellants)
SCB Legal Pty Ltd (Respondent)
File Number(s): 2022/00187211
Publication restriction: N/A
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:

[2022] NSWSC 820

Date of Decision:
23 June 2022
Before:
Ward P
File Number(s):
2018/00237019

JUDGMENT

  1. THE COURT: By judgment delivered on 22 February 2022 in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25, this Court dismissed grounds 1-8 of an appeal heard on 2 February 2022. The appellants succeeded in relation to one aspect of ground 9, on a point which seemed not to have been advanced before the primary judge, and requested in that event that there be an opportunity to be heard on the orders which should be made. This Court acceded to that request. No orders as to costs were made, although some preliminary views were expressed at [103] as to costs at first instance and in this Court.

  2. Accordingly, this Court made the following orders on 22 February 2022:

(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…

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Details
AGLC
Kimberley Developments Pty Ltd v Bale (No 2) [2023] NSWCA 95
Case
[2023] NSWCA 95
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Kimberley Developments Pty Ltd and Ms Bale regarding the reconveyance of land held on a constructive trust for Ms Bale. The primary issue revolved around the calculation of allowances for expenses claimed by Kimberley Developments. The Court of Appeal was also required to consider disputed fresh evidence and a request for an oral hearing by one of the parties.

The Court of Appeal determined that the previous orders made on 23 June 2022, which had directed a court-appointed referee to determine certain issues, should be set aside. Instead, the Court remitted the balance of the proceedings to the Equity Division for a further hearing before a single judge. This hearing was intended to address the issues raised in the submissions exchanged by the parties.

In its reasoning, the Court discharged the existing stay on the orders made on 23 June 2022, meaning Kimberley Developments was to transfer unencumbered title to the Forest Lodge Property to Ms Bale within 28 days. The Court also granted liberty to the parties to apply to the judge hearing the remitted proceedings on three clear working days' notice. The expectation was that the further hearing would take place within approximately 6 to 8 weeks.

Orders

Orders of the court

1. Discharge the existing stay of the orders made on 23 June 2022.

2. Note that the effect of order 1 above is that Kimberley Developments is to transfer unencumbered title to the Forest Lodge Property to Ms Bale within 28 days of today.

3. Set aside orders 9, 12 and 17 made on 23 June 2022 insofar as those orders were directed to a Court appointed referee, and in lieu thereof remit the balance of the proceeding to the Equity Division, with a view that there will be a further hearing of the issues raised on the submissions exchanged by the parties before a single judge who is a member of this Court, at a date to be fixed but in the expectation that it will be in some 6-8 weeks hence.

4. Grant liberty to the parties to apply to the judge before whom the balance of the proceeding is to be heard on three clear working days’ notice.

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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