Kimberley Developments Pty Ltd v Bale (No 2)

[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…