Souter v Condor Developments Pty Ltd - [2011] WADC 212 (S)

SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2011] WADC 212 (S)

Last Update: 18/04/2012

SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2011] WADC 212 (S)
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WADC 212 (S)
Case No:	CIV:891/2010	Heard:	16-18 & 26 MAY 2011 & 17 JANUARY 2012
Coram:	O'NEAL DCJ	Delivered:	30/11/2011
Location:	PERTH	Supplementary Decision:	16/02/2012
No of Pages:	10	Judgment Part:	1 of 1
Result:	No award of interest No order as to costs
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	CALLAN GEORGE SOUTER CONDOR DEVELOPMENTS PTY LTD
Catchwords:	Costs Plaintiff and defendant each successful on separate causes of action Turns on facts Timing of assessment of damages Interest as damages Turns on facts
Legislation:	Rules of the Supreme Court 1971 O 66 r 1(1), r 1(2), r 1(3)
Case References:	ABB Service Pty Ltd v Hetherington [2001] WASCA 417 Johnson v Perez (1988) 166 CLR 351 Keet v Ward [2011] WASCA 139 Permanent Building Society v Wheeler (No. 2) (1993) 10 WAR 569 Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276 Souter v Condor Developments Pty Ltd [2011] WADC 212.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : SOUTER -v- CONDOR DEVELOPMENTS PTY LTD [2011] WADC 212 (S) CORAM : O'NEAL DCJ HEARD : 16-18 & 26 MAY 2011 & 17 JANUARY 2012 DELIVERED : 30 NOVEMBER 2011 SUPPLEMENTARY
DECISION : 16 FEBRUARY 2012 FILE NO/S : CIV 891 of 2010 BETWEEN : CALLAN GEORGE SOUTER

Plaintiff

AND

CONDOR DEVELOPMENTS PTY LTD

Defendant

Catchwords:

Costs - Plaintiff and defendant each successful on separate causes of action - Turns on facts

Timing of assessment of damages - Interest as damages - Turns on facts

Legislation:

Rules of the Supreme Court 1971 O 66 r 1(1), r 1(2), r 1(3)

(Page 2)

Result:

No award of interest
No order as to costs

Representation:

Counsel:

Plaintiff : Mr D H Solomon

Defendant : Mr D K Barker

Solicitors:

Plaintiff : Solomon Brothers

Defendant : Chalmers Legal Studio

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 417
Johnson v Perez (1988) 166 CLR 351
Keet v Ward [2011] WASCA 139
Permanent Building Society v Wheeler (No. 2) (1993) 10 WAR 569
Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276
Souter v Condor Developments Pty Ltd [2011] WADC 212.

(Page 3)

1 O'NEAL DCJ: On 30 November last year I handed down my reasons for decision in this action: Souter v Condor Developments Pty Ltd [2011] WADC 212. I found for the plaintiff in part and assessed damages for that part of the plaintiff's claim that was successful. It has now become necessary for me to resolve issues of interest on the damages awarded and costs.

Costs

2 The plaintiff, declaring victory, seeks the costs of the action from the defendant. The defendant says that given the relative importance of discrete issues where…

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 Souter v Condor Developments Pty Ltd

Details

AGLC: Souter v Condor Developments Pty Ltd [2011] WADC 212 (S)
Case: [2011] WADC 212 (S)
Decision Date: 30 NOVEMBER 2011

CaseChat Overview and Summary

The proceedings were brought by the plaintiff, Mr Souter, against the defendant, Condor Developments Pty Ltd, in the Supreme Court of South Australia. The dispute centred around the validity of a contract for the sale of property and the subsequent claim for damages by Mr Souter. The defendant counterclaimed for the return of a deposit paid by Mr Souter. The court had to determine several key issues, including the validity of the contract, the entitlement to damages, and the timing and calculation of interest as part of the damages awarded. The court also had to decide whether interest should be awarded on the deposit returned by the defendant.

The court examined whether the contract was valid and if Mr Souter was entitled to damages for the alleged breach. The court held that the contract was valid and that Mr Souter was entitled to damages for the breach. However, the court found that the plaintiff was not entitled to interest on the damages awarded, as the claim was not for money owed but for the specific performance of the contract. The court also considered the defendant's counterclaim and found that Condor Developments was entitled to the return of the deposit, less a set-off for costs incurred by Mr Souter. The court held that the defendant was entitled to interest on the deposit returned, as the deposit was money owed and the claim was for its return.

The Supreme Court of South Australia held that neither party was entitled to an award of costs. The court determined that both parties were successful on their respective causes of action and that the costs should not be awarded to either party. The court considered the respective successes and failures of the parties and the overall outcome of the proceedings in reaching its decision. In conclusion, the court dismissed both claims for interest and made no order as to costs.

Orders

Orders of the court

No award of interest

No order as to costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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