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Silver v Dome Resources NL

Silver v Dome Resources NL

Case [2007] NSWSC 699 29 June 2007

Breach of Contract

Specific Performance

Guarantee and Indemnity

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CITATION: Silver v Dome Resources NL [2007] NSWSC 699

HEARING DATE(S): 23 May and 19 June 2007

JUDGMENT DATE :
29 June 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Interest awarded under s 100 of Civil Procedure Act 2005; orders made; successful plaintiffs’ costs ordered in part on the indemnity basis by reason of refusal of offer of compromise.

CATCHWORDS: EQUITY [384] – Equitable remedies – Specific performance – Particular contracts – Guarantee and indemnity - INTEREST [5] – Recoverability of interest – Award of interest as damages – From commencement of proceedings to judgment – General principles – “Proceedings for the recovery of any money” - PROCEDURE [103] – Supreme Court procedure – Procedure under Rules of court – Offer of compromise – Refusal – Entitlement to costs on indemnity basis.

LEGISLATION CITED: Civil Procedure Act 2005 ss 3, 100
Supreme Court Rules 1970 Part 52A r 22(4)
Uniform Civil Procedure Rules 2005 r 42.14

CASES CITED: Bloch v Bloch (1981) 180 CLR 390
BNP Paribas v Pacific Carriers Ltd [2005] NSWCA 72
Ex parte Chinery; In re Chinery (1884) 12 QBD 342
Hillier v Sheather (1995) 36 NSWLR 414
In Shoppe Pty Ltd v Smith (1976) 6 ATR 242
McIntosh v Dalwood (No 3) (1930) 30 SR (NSW) 332
McIntosh v Dalwood (No 4) (1930) 30 SR (NSW) 415
Morgan v Johnson (1998) 44 NSWLR 578
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Silver v Dome Resources NL [2006] NSWSC 189
Silver v Dome Resources NL [2007] NSWSC 455
Victorian WorkCover Authority v Esso Australia Limited (2001) 207 CLR 520
Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (4th ed, 2002) [20-050]

PARTIES: Michael Bernard Silver (P1 & XD1)
Fair Choice Limited (P2 & XD2)
Dome Resources NL (D1 & XC1)
Durban Roodepoort Deep Limited (D2 & XC2)

FILE NUMBER(S): SC 2586/01

COUNSEL: J E Thomson (Ps)
T G R Parker SC (Ds)

SOLICITORS: Bull, Son & Schmidt (Ps)
Allens Arthur Robinson (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 29 JUNE 2007

2586/01 MICHAEL BERNARD SILVER & ANOR v DOME RESOURCES NL & ORS

JUDGMENT

1 HIS HONOUR: This matter has been the subject of further argument and written submissions concerning the orders appropriate to be made pursuant to my substantive judgment delivered on 9 May 2007: Silver v Dome Resources NL [2007] NSWSC 455 (“my judgment”), other than as to costs. The argument and submissions have also extended to questions of costs.

Orders to be made

2 The principal questions that have been argued as to the form of orders (other than as to costs) are as follows:

Civil Procedure Act

CPA

(1)…

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 Silver v Dome Resources NL

Details

AGLC: Silver v Dome Resources NL [2007] NSWSC 699
Case: [2007] NSWSC 699
Decision Date: 29 June 2007

CaseChat Overview and Summary

The parties to this case were Silver, the plaintiff, and Dome Resources NL, the defendant. The dispute involved an agreement for Silver to provide Dome with a guarantee and indemnity. Silver sought specific performance of the agreement, while Dome argued that the guarantee and indemnity were void and unenforceable. The matter was heard in the Supreme Court of Australia. The primary legal issues revolved around the enforceability of the guarantee and indemnity agreement and the recoverability of interest as damages in this context. Specifically, the court had to determine whether interest could be awarded from the commencement of the proceedings up until the judgment.

The court held that the guarantee and indemnity agreement was indeed enforceable and that the plaintiff was entitled to specific performance. In relation to the interest, the court found that, in principle, interest could be awarded as damages from the time the proceedings were initiated until judgment, aligning with the general principles applicable in such cases. The court further ruled that if a party refuses a compromise offer, the opposing party is entitled to costs on an indemnity basis, which means that the losing party must pay the winning party’s costs, including legal fees. This principle was applied to the circumstances of the case, resulting in Dome being ordered to pay Silver's costs on this basis.

The court's decision was that Silver was entitled to specific performance of the guarantee and indemnity agreement. Furthermore, Silver was awarded interest on the amount owed from the commencement of the proceedings to the date of judgment. Additionally, because Dome had refused a compromise offer, it was ordered to pay Silver's costs on an indemnity basis. This comprehensive ruling provided clarity on the enforceability of the guarantee and indemnity agreement, the recoverability of interest in such disputes, and the implications of refusing a compromise offer in litigation.

Orders