Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 4)

[2023] NSWSC 960

Supreme Court

New South Wales

Medium Neutral Citation:

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 4) [2023] NSWSC 960

Hearing dates:

On the papers; submissions received 14 August 2023

Date of orders:

15 August 2023

Decision date:

15 August 2023

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Orders made to dispose of the proceedings

Catchwords:

JUDGMENTS AND ORDERS – form of final orders to give effect to judgment

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 [2023] NSWSC 343

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 2) [2023] NSWSC 680

Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 3) [2023] NSWSC 881

Category:

Consequential orders

Parties:

Oxford (NSW) Pty Ltd (Plaintiff/First Cross-Defendant)
KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (First Defendant/First Cross-Claimant)
AS Coaching Pty Ltd atf Calm Properties Unit Trust ABN 19 756 796 114 trading as AK Properties Group ABN 62 971 068 965 (Second Defendant/Second Cross-Claimant)
Elankeeren Eswaran (Third Defendant/Third Cross-Claimant)
Ashay Sharma (Fourth Defendant/Fourth Cross-Claimant)
Pierre Kazzi (Second Cross-Defendant)

Representation:

Counsel:
A Cameron (Plaintiff/Cross-Defendants)
J Horowitz (Defendants/Cross-Claimants)

Solicitors:
Fortis Law Pty Limited (Plaintiff/Cross-Defendants)
Domain Legal Pty Limited (Defendants/Cross-Claimants)

File Number(s):

2020/7703

JUDGMENT

1. I have published three judgments in these proceedings. [1] I shall use the same abbreviations here.

   1. Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 [2023] NSWSC 343; Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 2) [2023] NSWSC 680; Oxford (NSW) Pty Ltd v KR Properties Global Pty Ltd trading as AK Properties Group ABN 62 971 068 965 (No 3) [2023] NSWSC 881.

2. Following the publication of my most recent judgment, I invited the parties to confer and agree on the orders necessary to dispose of the proceedings.

3. The parties agreed a timetable whereby:

1. the parties would provide the Court with a jointly prepared set of final orders by 9 August 2023, indicating which orders were in dispute;

2. the Builder and Mr Kazzi would provide the Court with their submissions regarding any orders still in dispute by 11 August 2023; and

3. the Owners would provide the Court with their submissions in response by 16 August 2023.

4. On 11 August 2023, I was informed by the solicitors for the Owners that they had not heard from the solicitors for the Builder and Mr Kazzi in relation to the preparation of a joint set of final orders. The Owners’ solicitor provided a copy of the final orders proposed by the Owners.

5. On 14 August 2023, the Owners provided submissions in support of the orders sought, including an order that the Builder pay costs on an indemnity basis from 30 April 2021, on the basis of an Offer of Compromise served by the Owners on the Builder on 29 April 2021, in which the Owners offered to settle the proceedings on a basis less favourable than they have achieved in the proceedings.

6. In those circumstances, and having heard nothing from the Builder and Mr Kazzi in relation to the orders proposed by the Owners, I made the following orders earlier today:

1. The Statement of Claim is dismissed.

2. Judgment for the First and Second Cross-Claimants against the First Cross-Defendant in the sum of $1,308,056.12.

3. Judgment for the First and Second Cross-Claimants against the Second Cross-Defendant in the sum of $277,579.50.

4. The Plaintiff is to pay the Defendants’/Cross-Claimants’ costs of the proceedings (including the Cross-Claim):

1. prior to 30 April 2021 on the ordinary basis; and

2. on and from 30 April 2021 on an indemnity basis.

5. The Second Cross-Defendant is to pay the First and Second Cross-Claimants’ costs of the Cross-Claim against the Second Cross-Defendant.

6. The sum of $42,280 paid by the Plaintiff to the District Court on or about 31 August 2020 as security for the Defendants’ costs of the proceedings is to be paid to the Defendants, together with any interest accrued thereon.

7. The sum of $70,000 paid by the First and Second Cross-Claimants into the trust account of Fortis Law Group on or about 16 December 2020 as security for the Cross‑Defendants’ costs of the Cross-Claim is to be paid to the First and Second Cross-Claimants, together with any interest accrued thereon.

8. The Plaintiff is to pay the Defendants/Cross-Claimants interest on the Defendants’/Cross-Claimants’ costs and disbursements:

1. at the rate prescribed in Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.7;

2. on the Allowed Percentage of each amount of costs and disbursements actually paid by the Defendants/Cross-Claimants; and

3. from the date of payment by the Defendants/Cross-Claimants of each such amount of costs and disbursements until the costs due under these orders have been paid.

Note:

4. The “Allowed Percentage” is a percentage calculated as (Y/X) * 100;

5. X = the total amount of costs and disbursements which the Defendants/Cross-Claimants have paid or are liable to pay in connection with these proceedings; and

6. Y = the total amount of costs and disbursements payable pursuant to Order 4 above, as agreed, assessed or fixed as a specified gross sum.

9. The Second Cross-Defendant is to pay the First and Second Cross-Claimants interest on the First and Second Cross-Claimants’ costs and disbursements:

1. at the rate prescribed in UCPR 36.7;

2. on the Allowed Percentage of each amount of costs and disbursements actually paid by the First and Second Cross-Claimants; and

3. from the date of payment by the First and Second Cross-Claimants of each such amount of costs and disbursements until the costs due under these orders have been paid.

Note:

4. The “Allowed Percentage” is a percentage calculated as (Y/X) * 100;

5. X = the total amount of costs and disbursements which the First and Second Cross-Claimants have paid or are liable to pay in connection with the Cross-Claim against the Second Cross-Defendant; and

6. Y = the total amount of costs and disbursements payable pursuant to Order 5 above, as agreed, assessed or fixed as a specified gross sum.

**********

Endnote

Decision last updated: 15 August 2023