Silver v Dome Resources NL [2007] NSWSC 699

Silver v Dome Resources NL [2007] NSWSC 699

Interest is payable under s 100 of the Civil Procedure Act 2005 where an order for payment of money is made, as such order constitutes a judgment. The second defendant is liable to make payment under the guarantee by reason of the wording of the deed, and specific performance is available against it. Indemnity costs follow the plaintiffs’ offer of compromise as the result was no less favourable than the offer, and no exceptional reason was shown to displace this consequence.

Parties
Plaintiff: Michael Bernard Silver; Plaintiff: Fair Choice Limited; Defendant: Dome Resources NL; Defendant: Durban Roodepoort Deep Limited
Jurisdiction
Australia
Judgment Date
29 June 2007
Procedural Posture
Equity Proceedings / Post Judgment Orders and Costs
Outcome
Orders made for payment of $473,655 plus interest to the second plaintiff; other proceedings and cross claim dismissed; costs to plaintiffs (partly on indemnity basis); stay of orders to 10 August 2007.
Legal Topics
Equitable Remedies, Specific Performance, Guarantee and Indemnity, Interest Awards, Costs Orders, Offers of Compromise
Equity Civil Procedure Equitable Remedies Specific Performance Guarantee and Indemnity Interest Awards Costs Orders Offers of Compromise

Case Brief

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Parties

Michael Bernard Silver

Plaintiff

Fair Choice Limited

Plaintiff

Dome Resources NL

Defendant

Durban Roodepoort Deep Limited

Defendant

Procedural Posture

Equity Proceedings / Post Judgment Orders and Costs

Legal Issues

  1. 1 Whether interest is recoverable under s 100 of the Civil Procedure Act 2005 for the money ordered under a specific performance-type order.
  2. 2 Whether the second defendant is liable to pay the sum due under the guarantee/indemnity to the second plaintiff.
  3. 3 The appropriate costs orders, including entitlement to indemnity costs following refusal of an offer of compromise.

Ratio Decidendi

Interest is payable under s 100 of the Civil Procedure Act 2005 where an order for payment of money is made, as such order constitutes a judgment. The second defendant is liable to make payment under the guarantee by reason of the wording of the deed, and specific performance is available against it. Indemnity costs follow the plaintiffs’ offer of compromise as the result was no less favourable than the offer, and no exceptional reason was shown to displace this consequence.

Court Disposition

Orders made for payment of $473,655 plus interest to the second plaintiff; other proceedings and cross claim dismissed; costs to plaintiffs (partly on indemnity basis); stay of orders to 10 August 2007.

Orders

  • Defendants to pay to the second plaintiff $473,655 plus $305,318.65 interest (total $778,973.65).
  • Proceedings otherwise dismissed.