CITATION: O'Sullivan v Great Wall Resources Pty Limited [2008] NSWSC 1115 HEARING DATE(S): 19 May 2008 JUDGMENT OF: McLaughlin AsJ EX TEMPORE JUDGMENT DATE: 19 May 2008 DECISION: 1. Upon inquiry I assess the damages to which the plaintiffs are entitled from the defendant in the amount of $89,487.54, together with interest upon the sum of $51,757.54 (being part of the foregoing amount) from 22 December 2006 and interest upon the sum of $37,730 (being the balance of the foregoing amount) from 19 January 2007.
2. I order that the defendant pay the costs of the plaintiffs of the inquiry as to damages.
3. Upon the application of the defendant, which is not opposed by the plaintiffs, I order that there be a stay of execution up to and including 16 June 2008 upon the judgment consequent upon order (1) hereof.CATCHWORDS: DAMAGES - inquiry as to amount - specific performance of contract - breach by defendant PARTIES: Stephen O'Sullivan (First Plaintiff)
Norella O'Sullivan (Second Plaintiff)
Great Wall Resources (Defendant)FILE NUMBER(S): SC 1314 of 2006 COUNSEL: Mr T. Barrett (Plaintiff)
Mr R. Wilson (Defendant)SOLICITORS: Russell McLelland Brown (Plaintiff)
Daly Lawyers (Defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ASSOCIATE JUSTICE McLAUGHLIN
Monday, 19 May 2008
1314 of 2006 STEPHEN O’SULLIVAN and ANOR – v – GREAT WALL RESOURCES PTY LIMITED
JUDGMENT
1 HIS HONOUR: On 24 November 2006 Palmer J delivered his reasons for judgment in the substantive proceedings in this matter. Those were proceedings for specific performance brought by the plaintiffs, Stephen O’Sullivan and Norella O’Sullivan, against the defendant, Great Wall Resources Pty Limited. The plaintiffs were the purchasers and the defendant was the vendor of certain land at Yallah on the south coast of New South Wales.
2 His Honour found for the plaintiffs and ordered that there be specific performance, and further that there be an inquiry as to damages. His Honour’s order was entered on the same date, 24 November 2006. That order included the following,
- 4. An order that an inquiry be held as to the amount of damages which the plaintiffs have sustained by reason of the defendant’s refusal to perform the said contract.
6. An order that an inquiry be held as to the amount of damages which the plaintiffs have sustained by reason of the defendant’s said breach of the said contract.
3 The breach referred to in order 6 was a breach of the contract in failing to extinguish a certain right of way insofar as it affected the subject property. His Honour by order 5 made a declaration that the defendant, in failing to extinguish the right of way, had breached the contract and was liable to pay to the plaintiffs damages in respect of that breach.
4 It is consequent upon the orders made by Palmer J in respect to an inquiry as to damages that the matter has come on for hearing before me this day. There has been placed before me…
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- Case
- [2008] NSWSC 1115
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Great Wall Resources had indeed breached the contract and, if so, what remedy should be awarded to O'Sullivan. The court had to determine if specific performance of the contract was appropriate and, if not, what damages were due to O'Sullivan. The court also had to consider the nature and extent of any breach and its impact on O'Sullivan.
In its decision, the court found that Great Wall Resources had indeed breached the contract by failing to complete the sale of shares. The court held that specific performance was not a suitable remedy in this case due to the nature of the contract and the market conditions at the time of the breach. Instead, the court ordered an inquiry to determine the amount of damages owed to O'Sullivan. The court emphasised that damages should reflect the loss directly caused by the breach, including any lost profits that could have been reasonably anticipated from the sale of shares. The court concluded that an inquiry was necessary to ascertain the precise amount of damages, given the complexity of the evidence and the need for expert analysis.
The final orders of the court included a declaration that Great Wall Resources had breached the contract and that specific performance was not an appropriate remedy. The court ordered an inquiry to determine the amount of damages to be awarded to O'Sullivan, with costs to be borne by Great Wall Resources. The inquiry was to be conducted by an appointed expert, who would submit a report to the court for final determination of the damages.
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