Ng v Filmlock Pty Ltd (No 2) [2015] NSWCA 59

Ng v Filmlock Pty Ltd (No 2) [2015] NSWCA 59

The primary judge's misdirection as to the appropriate measure of damages occasioned a substantial wrong or miscarriage, because the damages measure adopted was to the detriment of the applicants. Although the principal reasons did not expressly state that conclusion, the remitter order was for the applicants' benefit and should be varied to remove doubt by expressly remitting the matter for a new trial on quantum of damages. There was no basis to reconsider the costs order for the appeal, and the applicants were substantially unsuccessful on the motion, so they were to pay the respondent's costs of the motion.

Jurisdiction
Australia
Judgment Date
19 March 2015
Procedural Posture
Notice of Motion to Set Aside or Vary Orders Made in an Appeal / Court of Appeal, on the Papers
Outcome
Order (3) made on 13 November 2014 varied; notice of motion otherwise dismissed; applicants on the motion ordered to pay the respondent's costs of the motion.
Legal Topics
['variation of Judgments and Orders' 'new Trial' 'limited Remitter' 'substantial Wrong or Miscarriage' 'measure of Damages for Failure to Complete Contract for Sale of Land' 'costs']
['civil Procedure' 'appellate Procedure' 'contract Law'] ['variation of Judgments and Orders' 'new Trial' 'limited Remitter' 'substantial Wrong or Miscarriage' 'measure of Damages for Failure to Complete Contract for Sale of Land' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion to Set Aside or Vary Orders Made in an Appeal / Court of Appeal, on the Papers

Legal Issues

  1. 1 ['Whether orders (3), (4) and (5) made on 13 November 2014 should be set aside or varied under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the limited remitter ordered on 13 November 2014 required, and satisfied, the precondition in r 51.53(1) that a substantial wrong or miscarriage had been occasioned.' 'Whether the Court should reconsider its order that there be no order as to the costs of the appeal.' "Whether the applicants on the motion should pay the respondent's costs of the motion."]

Ratio Decidendi

The primary judge's misdirection as to the appropriate measure of damages occasioned a substantial wrong or miscarriage, because the damages measure adopted was to the detriment of the applicants. Although the principal reasons did not expressly state that conclusion, the remitter order was for the applicants' benefit and should be varied to remove doubt by expressly remitting the matter for a new trial on quantum of damages. There was no basis to reconsider the costs order for the appeal, and the applicants were substantially unsuccessful on the motion, so they were to pay the respondent's costs of the motion.

Court Disposition

Order (3) made on 13 November 2014 varied; notice of motion otherwise dismissed; applicants on the motion ordered to pay the respondent's costs of the motion.

Orders

  • ['Order (3) made on 13 November 2014 be varied to read as follows: "(3) The matter be remitted to Pembroke J for a new trial on the question of the quantum of damages to which the Vendors are entitled, including any application that a party may wish to make to adduce evidence as to the value of the land the subject...