Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343

Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343

The appellants' partial success required setting aside the dismissal of the further amended statement of claim, the declaration permitting forfeiture of deposits, and the costs order below, but the purchasers' claim was otherwise dismissed. The vendors were entitled to set off their damages judgment, with interest calculations producing a net judgment of $183,404.33 for the purchasers. A fair costs outcome, reflecting the issues run, won and lost and the manner in which the litigation was conducted, was that the appellants pay 20 per cent of the respondents' first instance costs and the respondents pay 50 per cent of the appellants' appeal costs.

Jurisdiction
Australia
Judgment Date
09 November 2011
Procedural Posture
Consequential Orders / On the Papers After Substantive Reasons on Appeal
Outcome
Appeal allowed in part.
Legal Topics
['consequential Orders' 'costs Following the Event' 'pre Judgment Interest' 'post Judgment Interest' 'set Off' 'return of Deposits Under Contracts for Sale of Land']
['civil Procedure' 'costs' 'contract Law'] ['consequential Orders' 'costs Following the Event' 'pre Judgment Interest' 'post Judgment Interest' 'set Off' 'return of Deposits Under Contracts for Sale of Land']

Case Brief

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Procedural Posture

Consequential Orders / On the Papers After Substantive Reasons on Appeal

Legal Issues

  1. 1 ["What orders should be made to reflect the Court's substantive reasons allowing the appeal in part." "Whether the vendors' judgment for damages should be set off against the judgment for return of deposits and how interest should be calculated." 'What costs orders were just in light of the issues run, won and lost at first instance and on appeal.']

Ratio Decidendi

The appellants' partial success required setting aside the dismissal of the further amended statement of claim, the declaration permitting forfeiture of deposits, and the costs order below, but the purchasers' claim was otherwise dismissed. The vendors were entitled to set off their damages judgment, with interest calculations producing a net judgment of $183,404.33 for the purchasers. A fair costs outcome, reflecting the issues run, won and lost and the manner in which the litigation was conducted, was that the appellants pay 20 per cent of the respondents' first instance costs and the respondents pay 50 per cent of the appellants' appeal costs.

Court Disposition

Appeal allowed in part.

Orders

  • ['The unnumbered third order made by the Court on 19 April 2010 dismissing the further amended statement of claim of Bullabidgee Pty Ltd ACN 125 772 483, Towool Pty Ltd ACN 125 772 821, Towool West Pty Ltd ACN 125 772 670, Towool Water Pty Ltd ACN 125 772 723, Warrawool Pty Ltd ACN 125 772 769, Warrawool North Pty...