Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 3)

[2014] NSWCA 290

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 3) [2014] NSWCA 290

Hearing dates:

On the papers

Decision date:

28 August 2014

Before:

Macfarlan JA
Meagher JA
Barrett JA

Decision:

The Court orders that:

(1) The proceedings be remitted to the Common Law Division to determine the amount of damages to be awarded to Perpetual and to make any consequential orders as to costs or otherwise.

(2) The costs of the present application be paid by the same party, and to the same extent, as may be ordered by the Common Law Division in respect of the costs of the hearing on the remitter.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - consequential orders - proceedings remitted to Common Law Division to determine quantum of damages - no issue of principle

Category:

Consequential orders

Parties:

Perpetual Trustee Company Ltd (Appellant)
CTC Group Pty Ltd (Respondent)

Representation:

Counsel:
J B Simpkins SC (Appellant)
J E Maconachie QC (Respondent)
Solicitors:
Gadens (Appellant)
Gilchrist Connell (Respondent)

File Number(s):

CA 2006/266040

 Decision under appeal 

Jurisdiction:

9111

Citation:

Perpetual Trustee Company Limited v El-Bayeh [2010] NSWSC 1487; Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049

Before:

McCallum J

File Number(s):

SC 2006/266040

Judgment

1. THE COURT: The Court delivered judgment on this appeal on 13 August 2012 ([2012] NSWCA 252). The Court allowed Perpetual's appeal and set aside the order made below dismissing Perpetual's claim for damages against CTC. The Court directed the parties to file submissions in the event that they were unable to agree as to the amount of the judgment to be entered in favour of Perpetual.

1. On 10 September 2012, CTC filed an application for special leave to appeal to the High Court and, after delivery by this Court of a judgment of 20 March 2013 confirming its previous judgment ([2013] NSWCA 58), filed a further application for special leave. Both special leave applications were dismissed.

1. The parties have been unable to agree as to the amount of Perpetual's damages and have filed affidavits and submissions dealing with their quantification, a topic with which the primary judge did not deal in her judgment of 9 September 2011.

1. In our opinion, the issues between the parties concerning damages are such that the determination of the amount of damages to be awarded should, as CTC seeks, be remitted to the Common Law Division.

1. Accordingly, the Court orders that the proceedings be remitted to the Common Law Division to determine the amount of damages to be awarded to Perpetual and to make any consequential orders as to costs or otherwise. The Court orders that the costs of the present application be paid by the same party, and to the same extent, as may be ordered by the Common Law Division in respect of the costs of the hearing on the remitter.

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