Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd (No 3) [2020] NSWSC 345

Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd (No 3) [2020] NSWSC 345

Although Sahab's reasons for failing to consent did not excuse it from any liability that might otherwise arise under s 68, Senses did not prove that Sahab's 11 month delay was more likely than not to cause ascertainable loss or damage. There was no evidence that the development application, or any development...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
02 April 2020
Procedural Posture
Equity Proceeding Concerning Contractual Remedies and Additional Damages After Specific Performance / Plaintiff's Application for Additional Damages Under Supreme Court Act 1970 (nsw), S 68 Following Orders for Specific Performance
Outcome
Plaintiff's application for additional damages under Supreme Court Act 1970 (NSW), s 68 refused.
Legal Topics
['damages After Specific Performance' 'specific Performance' 'causation of Loss' 'agreement for Lease' 'development Application Consent']
['contracts' 'equity' 'remedies'] ['damages After Specific Performance' 'specific Performance' 'causation of Loss' 'agreement for Lease' 'development Application Consent']

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Procedural Posture

Equity Proceeding Concerning Contractual Remedies and Additional Damages After Specific Performance / Plaintiff's Application for Additional Damages Under Supreme Court Act 1970 (nsw), S 68 Following Orders for Specific Performance

Legal Issues

  1. 1 ["Whether Senses should be awarded additional damages under Supreme Court Act 1970 (NSW), s 68 after obtaining specific performance of Sahab's obligations under the agreement for lease." "Whether Sahab's delay in consenting to the development application caused ascertainable loss or damage to Senses." "Whether Sahab's non-performance was excused by the Family Proceedings, injunctions and appointment of receivers." 'Whether Senses proved loss under clauses 6.1, 6.3 and 7 of the Agreement or by way of lost opportunity.']

Ratio Decidendi

Although Sahab's reasons for failing to consent did not excuse it from any liability that might otherwise arise under s 68, Senses did not prove that Sahab's 11 month delay was more likely than not to cause ascertainable loss or damage. There was no evidence that the development application, or any development application based on the Jago Concept Plans, was likely to be approved by the Council, nor evidence that earlier consent would have produced approval 11 months earlier. The alleged clause 6.3 rental exposure was conjectural, and the lost opportunity claim required a broader analysis of the whole project. The application for additional damages was therefore refused.

Court Disposition

Plaintiff's application for additional damages under Supreme Court Act 1970 (NSW), s 68 refused.

Orders

  • ["Refuse the plaintiff's application for additional damages under Supreme Court Act 1970 (NSW), s 68."]