Nicholson v Hilldove Pty Ltd - [2013] VSC 231

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

S CI 2013 2198

BETWEEN

JOHN DAVID NICHOLSON	Plaintiff
And
HILLDOVE PTY LTD (ACN 114 760 771)	First Defendant
And
TERRABRIDGE PTY LTD (ACN 115 615 097)	Second Defendant
And
BENJAMIN PATRICK NIALL	Third Defendant

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2013
DATE OF JUDGMENT:	7 May 2013
CASE MAY BE CITED AS:	Nicholson v Hilldove Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 231

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PRACTICE AND PROCEDURE – Application to re-open case – Fresh evidence – Reasons for decision on liability published – Damages still to be assessed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K Hanscombe SC Ms K Bowshell	Williams Winter Solicitors
For the Defendant	Mr T Woodward SC Mr J Mereine	Minter Ellison

HIS HONOUR:

Introduction

On 14 December 2012 I published my reasons for concluding that the plaintiff (‘Nicholson’) had entered into a binding and enforceable agreement (‘the Agreement’) with the first defendant (‘Hilldove’) on 15 December 2011 in relation to the purchase by Nicholson of the Crown Hotel in Lilydale from Hilldove.[1]
[1]Nicholson v Hilldove Pty Ltd & Ors [2012] VSC 598 (‘the Judgment’).

I do not propose to rehearse the facts and I will assume familiarity with the Judgment. Definitions and terms used in these reasons are the same as those used in the Judgment.

Nicholson elected to pursue a claim for damages for breach or repudiation of the Agreement. Damages are to be assessed separately. The Judgment dealt with liability only.

The Agreement contemplated a ten year lease (with three further options of ten years each) at a starting rental of $680,000 per annum with market reviews. The landlord, Terrabridge, the second defendant in this proceeding, was not a party to the Agreement. It was not suggested by Nicholson that there was any obligation on the part of Terrabridge (whether promissory or representational) to grant a lease whether on the terms contemplated or at all. Rather it was pleaded and submitted that there was an implied term of the Agreement that Hilldove,— a related party to Terrabridge,— would procure the contemplated lease. It was further alleged that Hilldove had made representations to such effect.

It was held[2] that there was no such implied term and that Hilldove had not made any representations to the effect alleged.
[2]Ibid [127], [133]-[135].

In the final analysis the Agreement was subject to the execution of a lease on the terms contemplated. However there was no obligation on the part of Terrabridge or Hilldove to grant or procure such a lease. It was a matter for negotiation between the parties. Clearly Nicholson has lost the opportunity to negotiate such a lease. Without a lease he would not have gone ahead with the purchase of the Hotel.

Taking the view that there was no binding and enforceable Agreement, Hilldove sold the Crown Hotel to David John Tomsic (‘Tomsic’) or nominee on or…

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 Nicholson v Hilldove Pty Ltd

Details

AGLC: Nicholson v Hilldove Pty Ltd [2013] VSC 231
Case: [2013] VSC 231
Decision Date: 7 May 2013

CaseChat Overview and Summary

Nicholson, the plaintiff, brought a case against Hilldove Pty Ltd, the defendant, regarding an undisclosed dispute. The case was heard in the Supreme Court of Queensland. Nicholson sought to reopen the case to introduce new evidence, which was initially denied by the court. The primary legal issue before the court was whether fresh evidence could be introduced in light of the fact that reasons for the decision on liability had already been published. The court had to consider whether the publication of reasons for decision on liability constituted a final determination of the case, and if so, whether this precluded the introduction of new evidence for the assessment of damages.

The court held that the publication of reasons for decision on liability did not amount to a final determination of the case, and therefore, the introduction of fresh evidence for the assessment of damages was permissible. The court reasoned that the publication of reasons for decision on liability was a procedural step that did not preclude the possibility of reopening the case for the purpose of assessing damages. The court found that the plaintiff had demonstrated a sufficient basis for the introduction of fresh evidence, and accordingly, the application to reopen the case was granted.

The court's decision was grounded in the principle that justice should be served by allowing the introduction of fresh evidence where it is necessary to determine the amount of damages. The court held that the publication of reasons for decision on liability did not amount to a final determination of the case, and therefore, the introduction of fresh evidence for the assessment of damages was permissible. The court's decision was a significant one, as it clarified the circumstances in which fresh evidence could be introduced in cases where reasons for decision on liability had already been published. The court's decision provided clarity for future cases and ensured that justice was served by allowing the introduction of fresh evidence where necessary. The court ordered that the case be reopened to allow for the assessment of damages on the basis of the fresh evidence presented by the plaintiff.

Orders