(1) Leave is granted to the respondents to file the notice of contention.
(2) Notice of contention reflecting the one ground pressed at the hearing on 16 April 2025 to be filed with the Court by 4 pm on 8 May 2025.
(3) Appeal dismissed.
(4) Appellants to pay the respondents’ costs of the appeal and of the notice of motion filed on 8 April 2025.
Catchwords:
CONTRACT – remedies – damages – measure of damages – contract for the sale of shares – where primary judge assessed damages by reference to lost expenditure – where breach results in uncertainty or difficulty of proof of loss – no error in primary judge’s approach
CONTRACT – remedies – damages – time of assessment – where purchase price was paid but shares were not transferred in accordance with the contract – where respondents were unaware that shares were not transferred – no error in assessing damages by reference to events that occurred after the breach of contract
RESTITUTION – ineffective transactions – general principles – restitution of money paid – failure of consideration– where parties’ relationship was governed by a valid contract – subsidiarity principle – where restitutionary claim did not undermine the parties’ allocation of risk
[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.
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Details
AGLC
Tok v Rashazar [2025] NSWCA 94
Case
[2025] NSWCA 94
Decision Date
CaseChat Overview and Summary
The appeal in *Tok v Rashazar* concerned a dispute arising from a contract for the sale of shares. The primary judge had assessed damages by reference to lost expenditure, and the respondents sought to file a notice of contention. The Court of Appeal, comprising Payne, Kirk and Stern JJA, ultimately dismissed the appeal.
The legal issues before the Court of Appeal included whether the primary judge erred in assessing damages by reference to lost expenditure, particularly where the breach of contract resulted in uncertainty or difficulty in proving loss. Further, the court considered whether it was appropriate to assess damages by reference to events that occurred after the breach, given that the purchase price had been paid but the shares were not transferred, and the respondents were unaware of this non-transfer. The court also considered the applicability of restitutionary principles, specifically the subsidiarity principle, in circumstances where the parties' relationship was governed by a valid contract.
The Court of Appeal found no error in the primary judge's approach to assessing damages by reference to lost expenditure, acknowledging that this method can be appropriate where a breach leads to uncertainty in proving loss. The court also held that it was permissible to consider events occurring after the breach when assessing damages, as the respondents' lack of awareness of the non-transfer of shares did not preclude such an assessment. Furthermore, the court determined that a restitutionary claim was not precluded by the existence of a valid contract, as it did not undermine the parties' agreed allocation of risk under the contract, thus upholding the subsidiarity principle.
The appeal was dismissed, and the appellants were ordered to pay the respondents’ costs of the appeal and of the notice of motion. Leave was granted to the respondents to file a notice of contention.
Orders
Orders of the court
(1) Leave is granted to the respondents to file the notice of contention.
(2) Notice of contention reflecting the one ground pressed at the hearing on 16 April 2025 to be filed with the Court by 4 pm on 8 May 2025.
(3) Appeal dismissed.
(4) Appellants to pay the respondents’ costs of the appeal and of the notice of motion filed on 8 April 2025.