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Quest Rose Hill Pty Ltd v White

Quest Rose Hill Pty Ltd v White

Case [2010] NSWSC 1190 18 October 2010

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CITATION: Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190

HEARING DATE(S): 12 October 2010

JUDGMENT DATE :
18 October 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Notice of Motion dismissed with costs.

CATCHWORDS: PRACTICE AND PROCEDURE - motion to vary principal judgment pursuant to r36.16 UCPR - motion dismissed with costs

LEGISLATION CITED: Contracts Review Act 1980 (NSW)
Strata Schemes Management Act 1996 (NSW)
Uniform Civil Procedure Rules 2005

CASES CITED: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385
Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304
Bowen Investments Pty Limited v TAB Corp Holdings Limited (No 2) [2008] FCAFC 107
Compagnie Noga d’Importation et d’Exportation SA v Abacha [2001] 3 All ER 513
Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423
Cretazzo v Lombardi (1975) 13 SASR 4
Dodds Family Investments Pty Limited v Land Industries Pty Limited (1993) 26 IPR 261
Fexuto v Bosnjak Holdings Pty Limited (No 3) (1998) 30 ACSR 20
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Golding v Vella (No 2) [2001] NSWSC 731
Hodge v TCN Channel 9 (No 2) [2006] NSWSC 1272
James v Surf Road Nominees Pty Limited (No 2) [2005] NSWCA 296
Leallee v the Commissioner of the NSW Department of Corrective Services [2009] NSWSC 518
Lavender View v North Sydney Council (No 2) [1999] NSWSC 775
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
Oshlak v Richmond River Council (1998) 193 CLR 72
Roache v News Group Newspapers [1992] TLR 551
Sahab Holdings Pty Ltd v Registrar-General and Anor [No 3] [2010] NSWSC 403
Short v Crawley (No 40) [2008] NSWSC 1302
Standard Commodities Pty Limited v Societe Cocinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496
Timms v Clift [1998] 2 Qd R 100
Uniline Australia Ltd (ACN 010 752 057) v Sbriggs Pty Ltd (ACN 007 415 518) and Another (No 2) [2009] FCA 920; (2009) 82 IPR 56
Vella v Mineo [2006] NSWSC 233
Wentworth v Rogers [2002] NSWSC 921
Windsurfing International Inc v Pettit (1987) AIPC 90-441

PARTIES: Quest Rose Hill Pty Ltd (Plaintiff)
Bernard Keith White (First Defendant)
Stuart Gerald Maile (Second Defendant)
Tracey Alison Maile (Third Defendant)
Boban Kocoski (Fourth Defendant)
Davone Inthachanh (Fifth Defendant)
Peter Nicholas Viler (Sixth Defendant)
Frederick Charles Naylor (Seventh Defendant)
Lynette Gail Naylor (Eighth Defendant)

FILE NUMBER(S): SC 2009/288819

COUNSEL:
J Van Aalst (Plaintiff)
P W Gray SC (First to Eighth Defendants)

SOLICITORS: Lodhia Lawyers (Plaintiff)
David Le Page Solicitor (First to Eighth Defendants)
D Bentley (Owners SP 64025)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

18 OCTOBER 2010

09/288819 QUEST ROSEHILL PTY LTD V BERNARD KEITH WHITE

JUDGMENT

1 HER HONOUR: On 24 August 2010 I handed down my reasons for judgment in these proceedings. Declaratory and other consequential relief had been sought by Quest Rosehill Pty Ltd…

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 Quest Rose Hill Pty Ltd v White

Details

AGLC: Quest Rose Hill Pty Ltd v White [2010] NSWSC 1190
Case: [2010] NSWSC 1190
Decision Date: 18 October 2010

CaseChat Overview and Summary

The case involved Quest Rose Hill Pty Ltd, the plaintiff, and the respondent, White. The dispute arose from an application to vary a principal judgment, specifically under rule 36.16 of the Uniform Civil Procedure Rules (UCPR). The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to amend the judgment to include additional interest payments, arguing that the original judgment had failed to account for the correct interest calculation. The respondent opposed the application, contending that the plaintiff's request was an attempt to relitigate the matter and was not within the scope of permissible variations under the rules.

The central legal issue before the court was whether the plaintiff's motion to vary the judgment was permissible under rule 36.16 UCPR. This rule allows for the correction of clerical or arithmetical errors in judgments, but the court had to determine whether the plaintiff's application fell within this category. Additionally, the court had to consider whether the plaintiff's application was an attempt to relitigate the case, which would render it outside the scope of permissible variations.

The court held that the plaintiff's application did not meet the criteria for a permissible variation under rule 36.16 UCPR. The court found that the request was not a simple clerical or arithmetical error but rather a substantive change to the judgment that involved recalculating interest. Furthermore, the court concluded that the plaintiff's application was effectively an attempt to relitigate the case, which was not permissible under the rules. Consequently, the court dismissed the motion to vary the principal judgment with costs.

Orders