President Finance Corporation Pty Ltd & Anor v Reid House Pty Limited

[1991] HCATrans 283

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S37 of 1991

B e t w e e n -

PRESIDENT FINANCE CORPORATION

PTY LTD and MILES DAVID BARCLAY

Applicants

and

REID HOUSE PTY LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

TOOHEY J

President 1 4/10/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 OCTOBER 1991, AT 3.03 PM

C~pyright in the High Court of Australia

MR P.P. STRASSER:  May it please the Court, in this matter I

appear for the appellants. (instructed by Miles

Barcley & Co)

MR G.P.F. RUNDLE:  May it please the Court, in this matter I

appear for the respondent. (instructed by Lane &

Lane)

MR STRASSER:  Your Honours, we would firstly seek to clarify

our principal, and indeed as it turns out, our only

ground of appeal. We say it is covered by the

grounds of appeal filed but we would seek to, with

Your Honours' leave, to hand up another document.

BRENNAN J: Yes, Mr Strasser.

MR STRASSER:  Your Honours, we restrict ourselves to the

matters raised in that additional ground of appeal

just handed up. In essence, the point of our

appeal is this, Your Honours, if I can just refer

to what we see as the salient factual matters. The

respondent company, in effect, took what has been

described as the appellant's space in the building. It did so in compliance with a notice issued by the council pursuant to a provision in the Local

Government Act relating to fire safety. As a

direct result of compliance with that fire notice,

and as a direct result of taking the appellant's

space, the respondent company then applied to the

City Council and took a decision to convert the

building to strata title from a company title.

As a result of that, Your Honours, we say that

all of the units, as it were, in the building
increased in value - and there is evidence of that,

of course; they increased because they changed from

a company title to strata title - and so we say in

short that the damages suffered by the appellants

as a result of their so-called loss of space should

be determined on the basis of strata title.

TOOHEY J:  Have you not got a difficulty, Mr Strasser, in so

far as the appeal originally was not against the

order made by Mr Justice Needham but against the

master's assessment, and therefore the way in which

the question of damages is to be approached is

really determined by the order made by

Mr Justice Needham against which there was no

appeal. If you cannot bring yourself within the

terms of that order you really cannot get off the

ground, can you?

MR STRASSER: That is quite so, with respect. But we say,

Your Honour, that for the purpose of assessing

damage in accordance with the order of His Honour

Mr Justice Needham, it requires assessment on the

basis as I have put it.

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BRENNAN J: But if you do base your case on

Mr Justice Needham's order, how do you make out

some question of general public importance

justifying the grant of special leave by this

Court?

MR STRASSER:  In effect we say that the respondent company

in a way - and this is over-generalizing it,

Your Honours, has benefited from its own wrong if

the damages are assessed at the date of breach,
rather than the date of hearing. At the date of
breach there was no potential for strata title in
this particular property but by the time of the

hearing of the assessment of damages the full

potential to strata title had come into bloom, as

it were.

In other words, a valuer doing valuation of

the property as at the date of the hearing of

damages would have been entitled to take into

account, and would have taken into account, and the

appellants' value did take into account the

potential of the property to strata title. Indeed,

by the time of the hearing of the assessment of

damages, the strata plan had been approved by the

council. At the time of breach, the respondent

company had not even passed any resolution to

convert the building to strata title.

So we say, Your Honours, in short that because

the respondent company had committed a wrongdoing

it had - not itself directly, but all of its

shareholders with the exception of the appellants -

had suffered a direct benefit by reason of that

wrongdoing, namely the elevation or the increase of

the value of their shares. It is as a direct

result of that, if we can put it this way,

confiscation of the appellants' property, that everybody else's property in that building had

increased in value. So we say it must be in the

interest of justice that the appellants' property

must also be valued for the purpose of assessing

compensation as the value of all other property in

the building. That is what we say, Your Honours,

is the aspect of public importance, that it is a

case in which to do proper justice one of the
matters which one takes into account is the nature

of the breach, namely the wrongdoing by the

respondent company which, in effect, we say has

unjustly in a way enriched all of the - - -

DAWSON J:  It is a curious argument because you did get the

benefit of the increase in value, did you not?

No, Your Honour, we did not, because we had

space taken from us.

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DAWSON J: Yes, but if that space had not been taken from

you, no one would have got the increase in value.

MR STRASSER: That is so, Your Honour. That could be so.

DAWSON J: It is not really a question of someone benefiting

from their wrongdoing; everyone benefited from what

happened. You lost something because of it, but

what you lost you lost at the time.

MR STRASSER: But, Your Honour, for the purpose of assessing

what I lost though, we say why should not we be

assessed on the same basis as every other

shareholder in that building?

DAWSON J: Because that was not the situation at the time

you lost. You benefited; everyone benefited from

the changed situation, but it was a changed

situation.

MR STRASSER:  We did not benefit, with respect,

Your Honours, as much as did the other shareholders

because we had space taken from us - - -

DAWSON J:  But you cannot say that because you would not
have benefited at all unless this had happened.

MR STRASSER: That is so, Your Honour. Unless there is some

other specific matter, those are our submissions,

if Your Honours please.

BRENNAN J: Thank you, Mr Strasser.

BRENNAN J: We need not trouble you, Mr Rundle. This case

involves no question of general public importance

which warrants the grant of special leave and no

other matters which Mr Strasser has urged in

support of the application justifies the grant of

such leave.

Accordingly, special leave will be refused.

MR RUNDLE: With costs, Your Honour?

BRENNAN J: Have you anything to say about costs,

Mr Strasser?

No, there is nothing I can say, Your Honour.

AT 3.11 PM THE MATTER WAS ADJOURNED SINE DIE

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