Legal Research
Cases
Permanent Custodians Limited v King

Permanent Custodians Limited v King

Case [2010] NSWSC 95 25 February 2010

Appeal

Jurisdiction

Summary Judgment

Discovery & Disclosure

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

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

- 30 -

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…

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 Permanent Custodians Limited v King

Details

AGLC: Permanent Custodians Limited v King [2010] NSWSC 95
Case: [2010] NSWSC 95
Decision Date: 25 February 2010

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