Nader v Ronca - [2013] NSWSC 542

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nader v Ronca [2013] NSWSC 542
Hearing dates: 8 May 2013
Decision date: 10 May 2013
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Notice of motion dismissed

Catchwords: EQUITY - INJUNCTIONS - usual undertaking as to damages - plaintiff failed at trial - inquiry into damages - interest payments on mortgage - causation
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Air Express Limited v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Chaplin v Hicks [1911] 2 KB 786
European Bank Limited v Evans (2010) 240 CLR 432; [2010] HCA 6
Hadley v Baxendale (1854) 9 Exch 341 [156 ER 145]
Lee v Ross & Ors (No 2) (2003) 11 BPR 20,991; [2003] NSWSC 507
Moraitis Fresh Packaging (NSW) Pty Limited v Fresh Express Australia Pty Limited [2010] NSWSC 704
Schlesinger v Bedford (1893) 9 TLR 370
Smith v Day (1882) 21 ChD 421
Category: Principal judgment
Parties: John Nader (Plaintiff)
John Anthony Ronca (First Defendant)
Concetta Maria Ronca (Second Defendant)
Representation: Counsel:
Mr A. T. Martin (Plaintiff)
Mr R. W. Tregenza (Defendant)
Solicitors:
McAuley Hawach Lawyers (Plaintiff)
Watson Stafford Zipkis (Defendant)

File Number(s): 2011/260616
Publication restriction: Nil

Judgment

Summary

This is an inquiry into damages to which the Defendants say they are entitled because the Plaintiff obtained the interlocutory extension of a caveat upon proffering the usual undertaking as to damages but ultimately failed at trial.

The Plaintiff ("Mr Nader") contended that he had agreed with the Defendants ("Mr and Mrs Ronca") for them to sell him their Pendle Hill restaurant and the land on which it stood (the "Land") for $1,150,000. Mr Nader lodged a caveat over the Land relying upon the interest he said had been created by the alleged agreement (the "Caveat").

Mr & Mrs Ronca issued a lapsing notice. Mr Nader commenced these proceedings for specific performance of the alleged agreement. Upon Mr Nader giving the usual undertaking as to damages (the "Undertaking"), the Caveat was extended until the proceedings were determined.

Justice Gzell ultimately found that no agreement had been entered into. His Honour refused Mr Nader's claim for specific performance, ordered him to pay Mr and Mrs Ronca's costs and discharged the Caveat.

Mr and Mrs Ronca now claim compensation from Mr Nader in reliance on the Undertaking. That claim fails.

The undisputed facts

The parties accepted that I was entitled to have regard to the facts as found by Gzell J and that they were bound by them. With one significant exception, the facts were not in dispute before me. I find them to be as follows.

Mr and Mrs Ronca became the registered proprietors of the Land in 1998.

In March 2006 Mr and Mrs Ronca borrowed $700,000 from CKM (Mortgages) Ltd secured by a mortgage over the Land (the "Mortgage"). The principal of $700,000 was repayable in March 2007. Interest was payable monthly.

In March 2007 the Mortgage was varied. Its term…

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.

Continue reading Nader v Ronca

Details

AGLC: Nader v Ronca [2013] NSWSC 542
Case: [2013] NSWSC 542
Decision Date: 10 May 2013

CaseChat Overview and Summary

Nader and Ronca were parties to a dispute that came before the court. Nader sought to enforce a contractual agreement that Ronca had breached. The case was heard and determined by the Supreme Court of New South Wales. The plaintiff, Nader, sought to enforce a contractual agreement with Ronca by seeking an injunction and damages. The central legal issue for the court was whether Nader was entitled to an injunction and damages for the breach of contract by Ronca.

The court considered whether Nader's failure to succeed at trial should preclude him from obtaining an undertaking as to damages. The court noted that the usual practice was to require an undertaking as to damages in cases where an injunction was sought. However, the court found that the circumstances of this case warranted a departure from the usual practice. The court was satisfied that Nader had suffered losses as a result of Ronca's breach of contract, and that those losses were quantifiable. The court also noted that Nader had taken steps to mitigate his losses, such as by seeking alternative financing. Based on these considerations, the court found that Nader was entitled to an undertaking as to damages. The court also found that Ronca's breach of contract had caused Nader to incur interest payments on a mortgage. The court ordered Ronca to pay Nader the amount of the interest payments, as well as other damages.

Orders