ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd [2018] NSWCA 203

ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd [2018] NSWCA 203

The appeal against the damages assessment failed because Palermo's lease was no longer specifically enforceable by 8 May 2013 and it had only a tenancy at will terminable on one month's notice, so there was no saleable business supporting goodwill; no prior finding required valuation of plant and equipment on a replacement value basis; the trial judge was entitled to assess market value at $200,000 and stock at $50,000 on the evidence; legal and corporate costs were not a recoverable head of damages; and no error was shown in the evidentiary rulings concerning the Gurciullo and Knight reports. However, the costs order made by Slattery J was too narrow because the remitter permitted costs...

Jurisdiction
Australia
Judgment Date
18 September 2018
Procedural Posture
Appeal Concerning Damages for Conversion and Costs After Remitter for Rehearing / Appeal From Judgments and Orders of Slattery J in the Supreme Court, Equity Division, Dated 11 December 2017 and 30 April 2018
Outcome
Appeal otherwise dismissed; costs order varied.
Legal Topics
['conversion' 'damages' 'valuation of Stock, Plant and Equipment' 'loss of Goodwill' 'remitter for Rehearing' 'uniform Civil Procedure Rules 2005 (nsw), R 51.53' 'appeal Costs']
['torts' 'civil Procedure' 'costs'] ['conversion' 'damages' 'valuation of Stock, Plant and Equipment' 'loss of Goodwill' 'remitter for Rehearing' 'uniform Civil Procedure Rules 2005 (nsw), R 51.53' 'appeal Costs']

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Procedural Posture

Appeal Concerning Damages for Conversion and Costs After Remitter for Rehearing / Appeal From Judgments and Orders of Slattery J in the Supreme Court, Equity Division, Dated 11 December 2017 and 30 April 2018

Legal Issues

  1. 1 ['Whether the trial judge erred in rejecting a claim for loss of goodwill.' 'Whether the trial judge erred in valuing plant and equipment by market value rather than replacement value.' 'Whether the trial judge erred in rejecting legal and corporate costs as a head of damage.' "Whether the trial judge erred in rejecting reliance on Mr Gurciullo's report where the expert was not called for further cross-examination." 'Whether the trial judge erred in admitting or relying on the Knight Report.' 'Whether the costs order should have covered the first trial as well as the rehearing.' "Whether the respondents' non-compliance with interlocutory directions should affect appeal costs."]

Ratio Decidendi

The appeal against the damages assessment failed because Palermo's lease was no longer specifically enforceable by 8 May 2013 and it had only a tenancy at will terminable on one month's notice, so there was no saleable business supporting goodwill; no prior finding required valuation of plant and equipment on a replacement value basis; the trial judge was entitled to assess market value at $200,000 and stock at $50,000 on the evidence; legal and corporate costs were not a recoverable head of damages; and no error was shown in the evidentiary rulings concerning the Gurciullo and Knight reports. However, the costs order made by Slattery J was too narrow because the remitter permitted costs...

Court Disposition

Appeal otherwise dismissed; costs order varied.

Orders

  • ["Vary order (1) made by Slattery J on 30 April 2018 so that it provides: Order the defendants to pay two-thirds of the plaintiff's costs in the proceedings in the Equity Division." 'Otherwise dismiss the appeal from the judgment of Slattery J and the orders made on 11 December 2017 and 30 April 2018.' "Order the...