Permanent Custodians Ltd v Geagea (No 4) - [2016] NSWSC 934

Supreme Court

New South Wales

Medium Neutral Citation: Permanent Custodians Limited v Geagea (No 4) [2016] NSWSC 934
Hearing dates: 16 July 2015
Date of orders: 07 July 2016
Decision date: 07 July 2016
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Leave is granted to the fourth to sixth defendants to re-open to argue apportionment;

(2)   The damages assessed on the basis of a breach of warranty of authority were not, in the circumstances of this claim, apportionable;
(3)   The plaintiff will bring in short minutes of an order reflecting the judgments of the Court in this matter within 7 days of the delivery of this judgment.
Catchwords: PRACTICE AND PROCEDURE – application to re-open proceedings after reasons for judgment had issued but before entry of judgment – whether economic loss for breach of warranty of authority is apportionable claim under Civil Liability Act – application to re-open granted – economic loss not able to be apportioned.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Fair Trading Act 1987
Cases Cited: Adams (Deputy Federal Commissioner of Taxation (Victoria)) v Chas. S. Watson Pty Ltd [1938] HCA 37; (1938) 60 CLR 545
Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Brown v Brown [1993] 31 NSWLR 582
Collen v Wright (1857) 8 E. & B. 647; (1857) 27 L. J. (Q.B.) 215
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216; (2007) 164 FCR 450; (2007) 244 ALR 552
Elliott v the Queen; Blessington v the Queen [2007] HCA 51; (2007) 234 CLR 38
Gosling v Gaskell [1897] AC 575
Khan v Hadid (No 3) [2008] NSWSC 819
Lee v Irons [1958] VR 436
Leggo v Brown & Dureau Ltd [1923] HCA 19; (1923) 32 CLR 95
Permanent Custodians Limited v Geagea [2014] NSW SC 562
Permanent Custodians Limited v Geagea (No 3) [2014] NSW SC 1489
Pittalis and Another v Grant and Another [1989] 2 All ER 622
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187; (2008) NSWLR 762
Teoh v Minister for Immigration, Local Government & Ethnic Affairs (1994) 49 FCR 409; (1994) 121 ALR 436
Collen v Wright (1857) 8 E. & B. 647; (1857) 27 L. J. (Q.B.) 215
Category: Consequential orders (other than Costs)
Parties: Permanent Custodians Limited (Plaintiff/Respondent)
Tony Geagea (First Defendant)
Charbel Geagea (Second Defendant)
David Geagea (Third Defendant)
Phillip Howard Symonds (Fourth Defendant/First Applicant)
Christopher James Swanson (Fifth Defendant/Second Applicant)
Terence Edmund Ledlin (Sixth Defendant/Third Applicant)
Representation:
Counsel:
M Ashhurst SC/S Docker (Plaintiff/Respondent)
No Appearance (First, Second and Third Defendants)
G Watson SC/J Downing (Fourth, Fifth and Sixth Defendants/First, Second and Third Applicants)
Solicitors:
Kemp Strang (Plaintiff/Respondent)
No Appearance (First, Second…

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.

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Details

Case: [2016] NSWSC 934
Decision Date: 07 July 2016

CaseChat Overview and Summary

Permanent Custodians Limited initiated proceedings against Geagea, seeking relief related to alleged breaches of contract and warranties. The case was heard and decided by the Supreme Court of New South Wales. The primary dispute centred on whether economic loss incurred due to a breach of warranty of authority could be apportioned under the provisions of the Civil Liability Act 2002 (NSW). This issue arose after the Court had issued its reasons for judgment but before the formal entry of judgment. Geagea sought to reopen the proceedings to argue that the economic loss should not be apportionable, a matter which was contested by Permanent Custodians.

The court was required to determine whether the economic loss sustained by Permanent Custodians due to the breach of warranty of authority constituted an apportionable claim under the Civil Liability Act. The court needed to interpret the relevant statutory provisions and consider whether the economic loss was a type of damage that could be apportioned between the parties based on their respective contributions to the loss. The outcome of this determination had significant implications for the apportionment of liability and the potential recovery of damages in the case.

The court, after reviewing the statutory provisions and relevant case law, concluded that the economic loss in question was not an apportionable claim under the Civil Liability Act. This conclusion was based on the nature of the economic loss and the specific wording of the statute. The court found that the statutory framework did not permit the apportionment of economic loss resulting from a breach of warranty of authority. Consequently, the court granted the application to reopen the proceedings, allowing Geagea to argue that the economic loss should not be apportioned. This decision highlighted the importance of statutory interpretation in determining the apportionment of damages in contractual disputes.

Orders