Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338

Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338

The application to permit further defence of the $232,000 claim by withdrawing previous reasons for judgment is refused as the arguments were neither properly raised at trial nor viable in law or fact, especially given the prejudice caused by Alan Bernoth's death. The plaintiffs are awarded judgment of $312,013, but there is no order as to costs due to divided success overall.

Parties
Plaintiff: Alanbert Pty Limited; Plaintiff: Bernoth Realty Pty Ltd; Plaintiff: Bertram Bernoth; Defendant: Bulevi Pty Ltd; Defendant: Davhand Pty Ltd
Jurisdiction
Australia
Judgment Date
22 April 2002
Procedural Posture
Civil / Judgment and Final Orders After Multiple Interlocutory and Substantive Hearings
Outcome
Application to withdraw part of judgment refused; judgment for plaintiffs for $312,013; no order as to costs; plaintiffs to withdraw caveat; injunctive and stay orders granted.
Legal Topics
Setting Aside and Varying Judgments, Costs, Mortgages, Contract Interpretation, Estoppel
Equity Civil Procedure Setting Aside and Varying Judgments Costs Mortgages Contract Interpretation Estoppel

Case Brief

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Parties

Alanbert Pty Limited

Plaintiff

Bernoth Realty Pty Ltd

Plaintiff

Bertram Bernoth

Plaintiff

Bulevi Pty Ltd

Defendant

Davhand Pty Ltd

Defendant

Procedural Posture

Civil / Judgment and Final Orders After Multiple Interlocutory and Substantive Hearings

Legal Issues

  1. 1 Whether the court should withdraw part of its previous reasons for judgment relating to a $232,000 claim concerning proceeds of sale of lots 11 and 12
  2. 2 Whether further defence to the $232,000 claim should be permitted after the death of a key party
  3. 3 How costs should be allocated between parties given divided success on various issues

Ratio Decidendi

The application to permit further defence of the $232,000 claim by withdrawing previous reasons for judgment is refused as the arguments were neither properly raised at trial nor viable in law or fact, especially given the prejudice caused by Alan Bernoth's death. The plaintiffs are awarded judgment of $312,013, but there is no order as to costs due to divided success overall.

Court Disposition

Application to withdraw part of judgment refused; judgment for plaintiffs for $312,013; no order as to costs; plaintiffs to withdraw caveat; injunctive and stay orders granted.

Orders

  • Judgment for the plaintiffs against the first and second defendants for $312,013.
  • No order as to costs of the proceedings, except for orders already made.