Libra Collaroy Pty Ltd v Bhide (No 2)

[2017] NSWCA 229

Court of Appeal
Supreme Court

New South Wales

Case Name:	Libra Collaroy Pty Ltd v Bhide (No 2)
Medium Neutral Citation:	[2017] NSWCA 229
Hearing Date(s):	On the papers
Date of Orders:	11 September 2017
Decision Date:	11 September 2017
Before:	McColl JA; Meagher JA; Ward JA
Decision:	See paragraph 4
Catchwords:	PROCEDURE – entry of short minutes of order
Category:	Principal judgment
Parties:	Libra Collaroy Pty Ltd (Appellant) Deepak Anant Bhide (First Respondent) Alka Bhide (Second Respondent) Joanne Gillies (Third Respondent)
Representation:	Counsel: D Priestley SC (Appellant) R J Brender (First and Second Respondents) D O’Dowd (Third Respondent)   Solicitors: Gilchrist Connell Lawyers (Appellant) Anderson & Sjoquist Lawyers (First and Second Respondents) Curwoods Lawyers (Third Respondent)
File Number(s):	2016/65770; 2016/229209
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Civil
Date of Decision:	1 October 2015; 3 February 2016
Before:	Curtis DCJ
File Number(s):	2014/4641; 2014/4657; 2014/4687; 2014/4699; 2014/69433

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

1. THE COURT: The Court handed down judgment in this matter on 4 August 2017 allowing the appeal and directing the parties to bring in Short Minutes of Order reflecting the Court’s reasons within 14 days.

2. The parties brought in Short Minutes of Order which did not reflect the Court’s reasons. The Court amended those Short Minutes of Order and forwarded them to the parties on 1 September 2017 directing them that, if any party wished to argue for any changes, any such submissions should be forwarded to the Court by 5pm on Wednesday 6 September 2017, alternatively, that if the parties accepted that the Short Minutes of Order drafted by the Court properly reflected the judgment, they should advise the Court of that fact.

3. Both the appellant and the third respondent advised the Court prior to 6 September 2017 that they agreed with the Short Minutes of Order proposed by the Court. The first and second respondents have not informed the Court of their acceptance of the Short Minutes, but, too, have not made any submission suggesting those Short Minutes were not in accordance with the Court’s reasons.

4. The Court is of the view that the Short Minutes of Order it forwarded to the parties reflect its reasons. Accordingly, the Court makes the following orders and notes the matters appearing under the heading “Note”:

   (1)Grant leave to appeal.

   (2)Appeal allowed.

   (3)The following orders contained in the judgment dated 3 February 2016 of Curtis DCJ are set aside: at paragraphs 9(a),(b); 14(b),(c); 16(c),(d),(e),(f); 18(b),(c); 20(c),(d),(e),(f); 23(b),(c); 25(c),(d),(e),(f); 28(b),(c); 30(c),(d),(e),(f).

   In lieu of the orders referred to in order 3:

   (4)Judgment for each of the plaintiffs against Deepak Anant Bhide and Alka Bhide in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433.

   (5)Judgment for Deepak Anant Bhide and Alka Bhide against Libra Collaroy Pty Ltd on the First Cross-Claim in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433.

   (6)The amount of any damages recovered by Deepak Anant Bhide and Alka Bhide from Libra Collaroy Pty Ltd on the First Cross-Claim in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433 is to be reduced by 30%.

   (7)Judgment for Libra Collaroy Pty Ltd against Joanne Gillies on the Second Cross-Claim in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433.

   (8)Joanne Gillies is to contribute 20% to Libra Collaroy Pty Ltd’s liability to the plaintiffs in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433.

   Costs

   (9)Deepak Anant Bhide, Alka Bhide and Joanne Gillies pay Libra Collaroy Pty Ltd’s costs of the appeal.

   (10)Each of Libra Collaroy Pty Ltd, Deepak Anant Bhide and Alka Bhide is to bear its or his/her own costs of the First and Second Cross-Claims in DC No 2014/4641, DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433.

   (11)Joanne Gillies is to pay Libra Collaroy Pty Ltd’s costs of the Second Cross-Claim in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433.

   (12)Libra Collaroy Pty Ltd, Deepak Anant Bhide, Alka Bhide and Joanne Gillies are to pay the plaintiffs' costs on a party/party basis in the Court below in the following proportions in DC No 2014/4657, DC No 2014/4699, DC No 2014/4687 and DC No 2014/69433:

   (a)Libra Collaroy Pty Ltd: 50%;

   (b)Deepak Anant Bhide and Alka Bhide: 30%;

   (c)Joanne Gilllies: 20%.

   (13)Libra Collaroy Pty Ltd, Deepak Anant Bhide and Alka Bhide are to pay Joanne Gillies’ costs on a party/party basis in DC No 2014/4641 in the Court below in the following proportions:

   (a)Libra Collaroy Pty Ltd: 70%;

   (b)Deepak Anant Bhide and Alka Bhide: 30%.

   Note

   The Court notes that, subject to Joanne Gillies establishing in DC No 2014/4641 that she has suffered damage by reason of Libra Collaroy Pty Ltd’s, Deepak Anant Bhide and Alka Bhide’s breach of duty, the following orders should be made in addition to whatever damages orders are made:

   (14)Judgment for Joanne Gillies against Libra Collaroy Pty Ltd, Deepak Anant Bhide and Alka Bhide.

   (15)Judgment for Deepak Anant Bhide and Alka Bhide on the First Cross-Claim in DC No 2014/4641.

   (16)The amount of any damages to be recovered by Deepak Anant Bhide and Alka Bhide from Libra Collaroy Pty Ltd on the First Cross-Claim is to be reduced by 30%.

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