Kumar v Sydney Western Realty Pty Ltd & Anor (No. 3) [2021] NSWDC 481

Kumar v Sydney Western Realty Pty Ltd & Anor (No. 3) [2021] NSWDC 481

The defendants' criticisms of the loss of value and stamp duty heads of loss were not authorised by the earlier invitation to submit calculations and were not proper slip rule corrections. The Court had power under r 2.1 to permit reopening before final orders were entered. Reopening was refused for the loss of value head because the defendants had run their case on crediting rent from the granny flat only, and any misapprehension was solely attributable to their own conduct. Reopening was permitted for stamp duty because any misapprehension about Exhibit C was not solely attributable to the defendants, the issue was confined to construing a single document, and the amount was...

Jurisdiction
Australia
Judgment Date
13 September 2021
Procedural Posture
Civil Proceeding; Consequential Orders Following Reasons on Liability and Damages / On the Papers After Reasons Were Published and Before Final Dispositive Orders Were Entered
Outcome
The defendants' application to reopen was declined for the loss of value head of loss and granted for the stamp duty head of loss. The stamp duty head was corrected to $4,500, damages were revised to $81,664.72 after contributory negligence, and the defendants' approach to interest calculations was accepted.
Legal Topics
['slip Rule' 'reopening Argument Before Entry of Orders' 'misapprehension of Fact or Law' 'misleading or Deceptive Conduct' 'professional Negligence' 'contributory Negligence' 'stamp Duty Damages' 'diminution in Value' 'interest on Damages']
['civil Procedure' 'judgments and Orders' 'damages' 'interest'] ['slip Rule' 'reopening Argument Before Entry of Orders' 'misapprehension of Fact or Law' 'misleading or Deceptive Conduct' 'professional Negligence' 'contributory Negligence' 'stamp Duty Damages' 'diminution in Value' 'interest on Damages']

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Procedural Posture

Civil Proceeding; Consequential Orders Following Reasons on Liability and Damages / On the Papers After Reasons Were Published and Before Final Dispositive Orders Were Entered

Legal Issues

  1. 1 ["Whether the defendants' proposed corrections were within the invitation to submit calculations or amounted to an application to reopen argument." 'Whether the slip rule in r 36.17 Uniform Civil Procedure Rules 2005 (NSW) applied to the proposed corrections.' 'Whether the Court had power under r 2.1 Uniform Civil Procedure Rules 2005 (NSW) to permit reopening before final orders were entered.' 'Whether reopening should be permitted regarding the loss of value head of loss.' 'Whether reopening should be permitted regarding the stamp duty head of loss and whether that head should be recalculated.' 'Whether interest should be calculated on the global damages award or by reference to individual heads of loss, and from what date interest should run on the loss of value head.']

Ratio Decidendi

The defendants' criticisms of the loss of value and stamp duty heads of loss were not authorised by the earlier invitation to submit calculations and were not proper slip rule corrections. The Court had power under r 2.1 to permit reopening before final orders were entered. Reopening was refused for the loss of value head because the defendants had run their case on crediting rent from the granny flat only, and any misapprehension was solely attributable to their own conduct. Reopening was permitted for stamp duty because any misapprehension about Exhibit C was not solely attributable to the defendants, the issue was confined to construing a single document, and the amount was...

Court Disposition

The defendants' application to reopen was declined for the loss of value head of loss and granted for the stamp duty head of loss. The stamp duty head was corrected to $4,500, damages were revised to $81,664.72 after contributory negligence, and the defendants' approach to interest calculations was accepted.

Orders

  • ['The plaintiff should bring in short minutes within 3 business days to give effect to the reasons.' 'If there is any remaining dispute, it will be determined on the papers.']