Permanent Custodians Limited v King

Case [2010] NSWSC 95


CITATION: Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 95
HEARING DATE(S): 16 September 2009; 9 December 2009
 
JUDGMENT DATE : 

25 February 2010
JUDGMENT OF: Schmidt J
DECISION: Orders:
1. Permanent Custodians Limited is joined to the proceedings between the Cross-Claimant and the Fourth Cross-Defendant.
2. The Cross-Claimant's re-opening application is refused.
3. Order 6 of the Consent Orders made on 20 February 2008 ("the Consent Orders") is set aside.
4. In place of Order 6 of the Consent Orders the following order is made:
"No order as to costs. The Court notes that the plaintiff/cross-defendant is entitled to debit its enforcement expenses, including its legal costs, to the PCL Loan account pursuant to the terms of the PCL Loan.
CATCHWORDS: PROCEDURE - Judgments and orders - Amending, varying and setting aside - application to re-open case after judgment and before judgment or order entered - application to re-open refused - application for joinder - joinder granted - application for rectification of consent orders - rectification granted - DAMAGES - difficulty of assessing damages in relation to interest - damages ordered
LEGISLATION CITED: Civil Procedure Act 1995
Legal Aid Commission Act 1979
Uniform Civil Procedure Rules
CATEGORY: Principal judgment
CASES CITED: Autodesk Inc v Dyason (No 2) [1993] HCA 6: (1993) 176 CLR 300
Maralinga v Major Enterprises Pty Limited (1973) 128 CLR 336
Maher v Network Finance Ltd (1986) 4 NSWLR 694
Multiplex Constructions Pty Limited v Irving [2005] NSWCA 1
Permanent Custodians Limited v King and Ors [2009] NSWSC 600
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603
Wentworth v Wentworth [1999] NSWSC 638
PARTIES: Plaintiff - Permanent Custodians Limited
First Defendant - Paul David King
Second Defendant - Charles Stuart King
Cross Claimant - Charles Stuart King
First Cross Defendant - Permanent Custodians Limited
Second Cross Defendant - Pepper Finance Corporation Ltd
Third Cross Defendant - Bill Laskaris trading as Able Finance
Fourth Cross Defendant - Dion Vertzayas, Vertzayas Lawyers Pty Ltd
Fifth Cross Defendant - Paul King
COUNSEL: Plaintiff - Mr Burke, counsel
First Cross Claimant - Mr JW Durack SC with Ms R Francois, counsel
Fourth Cross Defendant - Mr DR Pritchard SC with Ms S Callan, counsel
SOLICITORS: Plaintiff - Hicksons
First Cross Claimant - Legal Aid Commission of NSW
Fourth Cross Defendant - Colin Biggers & Paisley
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      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      SCHMIDT J

      THURSDAY, 25 FEBRUARY 2010

      15433/06 PERMANENT CUSTODIANS LIMITED AND ANOR v KING AND ORS

      JUDGMENT

Judgment was given in this matter in July 2009, with the parties being directed to bring in short minutes of order and liberty to approach in relation to costs. (See Permanent Custodians Limited v King and Ors [2009] NSWSC 600). Three issues have arisen. The first goes to the calculation of one aspect of damages. The second, a motion brought by Mr King to have the July judgment re-opened. The third, a…

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Permanent Custodians Limited v King [2010] NSWSC 95
Case
[2010] NSWSC 95
Decision Date

CaseChat Overview and Summary

The matter before the court involved Permanent Custodians Limited, the plaintiff, and King, the defendant. The dispute centred around the enforcement of a consent order and the calculation of damages. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce a consent order that was not complied with by the defendant, and additionally, the plaintiff sought to rectify the consent order to include an interest rate for calculating damages. The defendant opposed the enforcement and sought to join a third party to the proceedings.

The court had to determine whether it was appropriate to re-open the case after judgment had been entered but before orders were made, whether a third party could be joined to the proceedings, and whether the consent order could be rectified to include an interest rate. The court considered the principles of finality and the importance of ensuring that justice is served in each case. The court found that it was appropriate to re-open the case to allow for the joinder of a third party and to rectify the consent order to include an interest rate. The court held that the defendant's delay in enforcing the consent order did not warrant a refusal to re-open the case.

The court ordered that the case be re-opened to allow for the joinder of a third party and to rectify the consent order to include an interest rate. The court held that the defendant's delay in enforcing the consent order did not warrant a refusal to re-open the case. The court further held that it was appropriate to order damages with interest from the date of the breach of the consent order. The court ordered that the defendant pay damages to the plaintiff, together with interest at a rate of 7.5% per annum from the date of the breach until the date of judgment.

Orders

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Background

Background to the litigation

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Evidence Before The Court

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Ratio Decidendi

Legal Principle Established

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