Robert Pryke Investments Pty Ltd v Blazai Pty Ltd [2000] NSWCA 222

Robert Pryke Investments Pty Ltd v Blazai Pty Ltd [2000] NSWCA 222

The respondent put sufficient evidence before the District Court about the nature and condition of the removed building and the cost of replacing it with a new building to permit the trial judge to assess the amount recoverable under s 66M(4). The 20% betterment deduction was an evaluative judgment open on the evidence and no serious mistake in approach, calculation or result was shown. The trial judge was entitled to reconsider English DCJ's interlocutory costs order in light of the earlier offer of compromise, but the proper order was that the plaintiff pay the defendant the costs thrown away by the adjournment. Accordingly, the appeal was dismissed subject only to a minor variation of...

Jurisdiction
Australia
Judgment Date
18 August 2000
Procedural Posture
Appeal From District Court Judgment / Court of Appeal Judgment
Outcome
Appeal dismissed subject to variation of the trial judge's costs orders.
Legal Topics
['abatement of Purchase Price Where Land Damaged Before Risk Passes to Purchaser' 'conveyancing Act Ss66 K, 66 M' 'factual Findings by Trial Judge' 'onus of Proving Quantum of Abatement' 'betterment Allowance' 'offer of Compromise and Solicitor and Client Costs' 'variation of Interlocutory Costs Order']
['property Law' 'conveyancing' 'civil Procedure' 'costs'] ['abatement of Purchase Price Where Land Damaged Before Risk Passes to Purchaser' 'conveyancing Act Ss66 K, 66 M' 'factual Findings by Trial Judge' 'onus of Proving Quantum of Abatement' 'betterment Allowance' 'offer of Compromise and Solicitor and Client Costs' 'variation of Interlocutory Costs Order']

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Procedural Posture

Appeal From District Court Judgment / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether there was any basis to disturb the trial judge's factual findings concerning the removed prefabricated building and its condition." 'Whether the respondent discharged its onus of proving the amount by which the purchase price should have been reduced under s 66M(4) of the Conveyancing Act 1919.' 'Whether the trial judge erred in assessing a just and equitable reduction of the purchase price by using replacement cost less a 20% betterment allowance.' 'Whether the trial judge erred in altering the costs order made by English DCJ on 16 November 1998.' 'Whether the trial judge erred in awarding solicitor and client costs from 9 October 1997 after an offer of compromise.']

Ratio Decidendi

The respondent put sufficient evidence before the District Court about the nature and condition of the removed building and the cost of replacing it with a new building to permit the trial judge to assess the amount recoverable under s 66M(4). The 20% betterment deduction was an evaluative judgment open on the evidence and no serious mistake in approach, calculation or result was shown. The trial judge was entitled to reconsider English DCJ's interlocutory costs order in light of the earlier offer of compromise, but the proper order was that the plaintiff pay the defendant the costs thrown away by the adjournment. Accordingly, the appeal was dismissed subject only to a minor variation of...

Court Disposition

Appeal dismissed subject to variation of the trial judge's costs orders.

Orders

  • ["Appeal dismissed subject to the trial judge's costs orders being set aside so that in their stead the following costs orders may be and are made: Order that the defendant pay the plaintiff's costs until 9 October 1997 on a party and party basis and that the defendant pay the plaintiff's costs from 9 October 1997...