Raine G2C Pty Ltd v Errichetti Nominees Pty Ltd

[2006] WASC 308 (S)

RAINE G2C PTY LTD -v- ERRICHETTI NOMINEES PTY LTD & ANOR [2006] WASC 308 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 308 (S)
Case No:	CIV:1809/2006	Heard:	25­27 OCTOBER 2006
Coram:	MASTER SANDERSON	Delivered:	20/12/06
Supplementary Delivered:	30/07/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
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Parties:	RAINE G2C PTY LTD (ACN 108 287 743) ERRICHETTI NOMINEES PTY LTD (ACN 008 792 916) THE REGISTRAR OF TITLES
Catchwords:	Practice and procedure Form of orders after trial Turns on own facts
Legislation:	Nil
Case References:	Raine G2C Pty Ltd v Errichetti Nominees Pty Ltd [2006] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RAINE G2C PTY LTD -v- ERRICHETTI NOMINEES PTY LTD & ANOR [2006] WASC 308 (S) CORAM : MASTER SANDERSON HEARD : 25­27 OCTOBER 2006 DELIVERED : 21 DECEMBER 2006 SUPPLEMENTARY
DECISION : 30 JULY 2007 FILE NO/S : CIV 1809 of 2006 BETWEEN : RAINE G2C PTY LTD (ACN 108 287 743)

Plaintiff

AND

ERRICHETTI NOMINEES PTY LTD (ACN 008 792 916)
First Defendant

THE REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure - Form of orders after trial - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Orders made

Category: B

Representation:

Counsel:

Plaintiff : Mr M D Cuerden
First Defendant : Mr P G Clifford
Second Defendant : No appearance

Solicitors:

Plaintiff : Verschuer Edward
First Defendant : Lawton Gillon
Second Defendant : No appearance

Case(s) referred to in judgment(s):

Raine G2C Pty Ltd v Errichetti Nominees Pty Ltd [2006] WASC 308


(Page 3)

1 MASTER SANDERSON: On 21 December 2006, I published reasons in this matter: Raine G2C Pty Ltd v Errichetti Nominees Pty Ltd [2006] WASC 308. Those reasons and the orders subsequently made allowed the plaintiff until the end of January 2007 to settle the subject property. In other words, there was an order for specific performance in its favour, and to give effect to that performance it had to produce the purchase price and all other necessary documentation to allow settlement to go ahead. Settlement never eventuated. The parties now wish to have orders made recognising that specific performance will not occur.

2 The remaining issue is how to dispose of the question of costs. But there are other matters to be considered. There were caveats on the property. These should now be removed. The counterclaim was dismissed and so that is not an issue. In a minute of proposed orders, the plaintiff did suggest that there be an order that it have "leave to terminate the Agreement and pursue such claim against the first defendant for damages as it may be advised". I see no basis upon which such an order could be made. The fact is settlement was to take place within a specified time and that did not occur. If the plaintiff thinks it has any further remedy against the first defendant, it is free to pursue those actions.

3 In my view, the proper order for costs is that there be no order. The plaintiff successfully pursued its action. But in the end it all came to nothing because it was unable to find the funds to settle the sale. There were no fruits of it successfully pursuing its claim. All along the first defendant maintained that funds would not be forthcoming and that was made an issue in the proceedings. In my view, there is no warrant for awarding costs in favour of the plaintiff.

4 But neither is there any warrant for awarding costs to the first defendant. The fact is that the first defendant's agent misrepresented the position to the plaintiff and based upon those misrepresentations, the plaintiff acted to its detriment. Ultimately, the first defendant was left with the property and was not forced to sell it to the plaintiff at what would have been, at the time of trial, significantly less than market value. But equally, the first defendant ought not enjoy any benefits from an action which was occasioned by misrepresentation of its agent.

5 In the end then, I am satisfied that there ought simply be no order as to costs. The orders then will be:

1. The operation of caveats J796794 and J803096 not be extended.

(Page 4)

2. Caveats J796794 and J803096 be removed by the second defendant.

3. There be no order for costs.