Smith v Ward - [1999] NSWSC 138

CITATION: Smith v Ward [1999] NSWSC 138

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4464/95

HEARING DATE(S): 14; 15; 16; 17 September; 14; 15; 20; 21; 26 October; 23 December 1998; 19 February 1999

JUDGMENT DATE:
24 February 1999

PARTIES :

K A & C Smith Pty Ltd (P)
v
Brian Douglas Ward & Ors (D)

JUDGMENT OF: Austin J

COUNSEL : J Simpkins (P)
P T Taylor (D)

SOLICITORS: Holman Webb (P)
Allars Mottee Hannaford (D)

CATCHWORDS: Practice and procedure - costs - damages less than $75,000 in Equity Division proceedings - Bullock or Sanderson order - appropriateness to dispute as to identity of contracting parties - calculation of interest on damages for breach of contract

DECISION: Orders as per judgment

STATUTES CITED
Supreme Court Act 1970 (NSW), s 94
Supreme Court Rules, Sch J, Pt 52A r 33

CASES CITED
Altamura v Victorian Railways Commissioners [1974] VR 33
Falkner v Bourke (1990) 19 NSWLR 574
Hall v Wilson [1954] VLR 576
Lackersteen v Jones (No 2) (1988) 93 FLR 442

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
AUSTIN J
24 FEBRUARY 1999
4464/95 K A & C SMITH PTY LTD (trading as Uticolor Australia) V BRIAN DOUGLAS WARD & ORS
JUDGMENT (Delivered orally on 24 February 1999 and revised on 2 March 1999)
1 On 23 December 1998 I handed down reasons for judgment on the substantive issues in this matter. I concluded that Mr Ward, the first defendant, had breached the restraint clause in the franchise agreement between him and the plaintiff dated 6 January 1990, and the plaintiff was entitled to damages for that breach, but was not entitled to an injunction. The plaintiff’s claims against the second and fourth defendants (Starcar Pty Ltd and Mrs Ward) were unsuccessful because they had not become parties to the franchise agreement and were not bound by it. I found that the cross-claim brought by the first and second defendants against the plaintiff and Mr Lindsay Smith, its managing director, failed. I stood the matter over to give the parties the chance to consider my lengthy reasons for judgment, and to make submissions on costs and other matters.
2 Apart from the question of costs on the main proceedings and the cross-claim, there were two other ancillary matters relating to costs. The first of these arose out of the cross-defendants’ successful application to amend their defence to the cross-claim. The second arose out of my decision of 21 October 1998, which dealt with the plaintiff’s application to restrain the enforcement of a costs order in favour of the defendants made by Santow J on 11 July 1998. In my reasons for judgment of 23 December 1998 I invited the parties to make submissions as to costs on the former application, but I had already heard submissions as costs on the latter application and I indicated that I proposed to order the plaintiff to pay the defendants’ costs.
3 When the matter came before me again on 19 February 1999,…

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 Smith v Ward

Details

AGLC: Smith v Ward [1999] NSWSC 138
Case: [1999] NSWSC 138
Decision Date: 24 February 1999

CaseChat Overview and Summary

In Smith v Ward, the plaintiff, Smith, sued Ward for damages relating to a contract dispute. The case was heard in the Equity Division, where the damages claimed were less than $75,000. The primary issue was whether a Bullock or Sanderson order was appropriate in a dispute concerning the identity of the contracting parties, and the calculation of interest on damages for breach of contract. The court had to determine the correct approach to awarding costs in this context.

The court examined whether the dispute over the identity of the contracting parties warranted a specific order under the Bullock or Sanderson principles. This involved considering the nature of the dispute and whether it was of a kind that would typically lead to such an order. Additionally, the court addressed the calculation of interest on damages awarded for breach of contract, assessing the appropriate rate and period for which interest should be applied. The court balanced the principles of fairness and efficiency in its reasoning.

The court held that a Bullock or Sanderson order was not appropriate given the circumstances of this case, particularly as the primary dispute was not centred on the identity of the contracting parties. Instead, the court focused on the breach of contract and the calculation of damages. Regarding the interest on damages, the court determined that the appropriate rate and period for interest should be calculated based on the statutory provisions and the terms of the contract, if any. The court awarded costs in accordance with the outcome of the proceedings.

The final orders included a determination on the inappropriateness of a Bullock or Sanderson order, the calculation of interest on damages as per statutory guidelines, and the award of costs to the successful party, Smith. The court's decision provided clarity on the application of these principles in the context of the specific dispute at hand.

Orders