Kumar v Sydney Western Realty Pty Ltd (No. 3) - [2021] NSWDC 481

District Court

New South Wales

Medium Neutral Citation: Kumar v Sydney Western Realty Pty Ltd & Anor (No. 3) [2021] NSWDC 481
Hearing dates: On the papers
Date of orders: 13 September 2021
Decision date: 13 September 2021
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraph 73

Catchwords:
JUDGMENTS AND ORDERS - reasons published, with opportunity granted to parties to submit as to calculations on heads of damages - defendants complain of reasoning as to disputed heads of loss and seek correction - whether any correction may be made under 'slip rule' - whether application to reopen argument - whether any suggested misapprehension in reasoning solely attributable to conduct of defendants - whether jurisdiction to permit reopening is enlivened
CIVIL PROCEDURE - disputed claim for interest on damages - whether interest awarded on basis of aggregate amount for damages or individual heads of loss - whether interest recoverable on future losses

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60
Supreme Court Act 1970 (NSW) s 101
Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 36.17

Cases Cited:
Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300
Gaskin v Ollerenshaw [2010] NSWSC 788
Kumar v Sydney Western Realty Pty Ltd & Anor(No.2) [2021] NSWDC 446
Majak v Rose (No.5) [2017] NSWCA 238
Newmont Yandal Operations Pty Ltd v The J Aron Corp (2007) 70 NSWLR 411
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

Category: Consequential orders
Parties: Ms D Kumar (plaintiff)
Sydney Western Realty Pty Ltd (first defendant)
Mr A Singh (second defendant)
Representation:
Counsel:
Mr R O’Neill for the plaintiff
Mr M Klooster for the first defendant
Mr M Hutchings for the second defendant
Solicitors:
Keen Lawyers for the plaintiff
Clyde & Co for the first defendant
Gilchrist Connell for the second defendant

File Number(s): 2020/00062493

Judgment

BACKGROUND

On 31 August 2021, after a four day trial earlier that month, I delivered my reasons for finding the first defendant, Sydney Western Realty and second defendant, Mr Singh liable in damages, respectively, for misleading or deceptive conduct and professional negligence (in tort)^[1]. I found that the damages to be awarded were to be in the sum of $101,631.22. I further found the liability as between the first and second defendants should be apportioned at 25% and 75%, respectively. I directed the parties to confer with a view to providing short minutes of order to dispose of the proceeding.
1. Kumar v Sydney Western Realty Pty Ltd & Anor (No.2) [2021] NSWDC 446.
The parties agreed on appropriate costs orders. However, they were otherwise unable to agree on the amount for the award for interest. This was primarily attributable to a dispute about the amount for damages; although there were some additional disputes about aspects of the award of interest. But on the award of damages, both defendants made criticisms of findings I made regarding two of the heads of loss in the damages section of the judgment; in…

Grounds of appeal

[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

Case: [2021] NSWDC 481
Decision Date: 13 September 2021

CaseChat Overview and Summary

Kumar, the plaintiff, initiated legal proceedings against Sydney Western Realty Pty Ltd, the defendant, in the Supreme Court of New South Wales. The dispute primarily revolved around the calculation of damages, particularly concerning the interest on damages. Kumar claimed that Sydney Western Realty Pty Ltd had breached contractual obligations, resulting in financial losses. The case reached a point where the court had to determine the correct basis for calculating interest on damages and whether interest should be awarded on future losses. Additionally, the defendants sought to correct what they perceived as errors in the court's reasoning regarding certain heads of loss, requesting clarification and potentially reopening the argument on damages.

The court was tasked with resolving several legal issues. Firstly, it needed to determine the appropriate method for calculating interest on damages: whether it should be based on the aggregate amount for damages or on individual heads of loss. Secondly, it had to decide if interest was recoverable on future losses. Furthermore, the court had to consider whether any corrections to its reasoning could be made under the 'slip rule', and whether there were grounds to permit reopening of the argument on damages. This included assessing whether any misapprehension in the court's reasoning could be attributed solely to the conduct of the defendants and whether the court had the jurisdiction to permit such reopening.

In its reasoning, the court clarified that it had not erred in its initial assessment regarding the calculation of interest on damages. The court determined that interest should be calculated on the aggregate amount of damages rather than on individual heads of loss. It also ruled that interest was not recoverable on future losses. Regarding the defendants' application to correct the reasoning, the court held that no correction was necessary as the defendants' conduct did not lead to any misapprehension in the court's reasoning. Consequently, the court declined to reopen the argument on damages. The court's final orders were that the reasons for judgment published would stand, with an opportunity granted to the parties to submit calculations on the heads of damages.

Orders

Orders of the court

See paragraph 73

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kumar v Sydney Western Realty Pty Ltd & Anor (No. 3) [2021] NSWDC 481
Hearing dates:	On the papers
Date of orders:	13 September 2021
Decision date:	13 September 2021
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 73
Catchwords:	JUDGMENTS AND ORDERS - reasons published, with opportunity granted to parties to submit as to calculations on heads of damages - defendants complain of reasoning as to disputed heads of loss and seek correction - whether any correction may be made under 'slip rule' - whether application to reopen argument - whether any suggested misapprehension in reasoning solely attributable to conduct of defendants - whether jurisdiction to permit reopening is enlivened CIVIL PROCEDURE - disputed claim for interest on damages - whether interest awarded on basis of aggregate amount for damages or individual heads of loss - whether interest recoverable on future losses
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60 Supreme Court Act 1970 (NSW) s 101 Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 36.17
Cases Cited:	Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 Gaskin v Ollerenshaw [2010] NSWSC 788 Kumar v Sydney Western Realty Pty Ltd & Anor(No.2) [2021] NSWDC 446 Majak v Rose (No.5) [2017] NSWCA 238 Newmont Yandal Operations Pty Ltd v The J Aron Corp (2007) 70 NSWLR 411 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Category:	Consequential orders
Parties:	Ms D Kumar (plaintiff) Sydney Western Realty Pty Ltd (first defendant) Mr A Singh (second defendant)
Representation:	Counsel: Mr R O’Neill for the plaintiff Mr M Klooster for the first defendant Mr M Hutchings for the second defendant Solicitors: Keen Lawyers for the plaintiff Clyde & Co for the first defendant Gilchrist Connell for the second defendant
File Number(s):	2020/00062493