Sydney Attractions Group Pty Ltd v Frederick Schulman (No 2) [2013] NSWSC 1153

Sydney Attractions Group Pty Ltd v Frederick Schulman (No 2) [2013] NSWSC 1153

The plaintiff was not permitted after judgment to shift to an unpleaded fallback case based on the Rider Hunt estimate. The defendant's statement that the Rider Hunt estimate was the best evidence, understood in context, was not an admission, concession, acceptance, acknowledgement or operative assumption that Skywalk Capital Expenditure was $3,798,820, and the defendant obtained no advantage from that submission. Because more precise or better evidence of the expenditure should have been available to the plaintiff, the court would not adopt the pre-construction Rider Hunt estimate by doing the best it could.

Jurisdiction
Australia
Judgment Date
22 August 2013
Procedural Posture
Consequential Orders / Post Judgment Hearing Following Principal Judgment Concerning Consequential Issues and Whether a Fallback Figure for Skywalk Capital Expenditure Could Be Adopted
Outcome
The plaintiff's attempt to have $3,798,820 adopted as Skywalk Capital Expenditure was rejected; no final consequential orders were made in this judgment.
Legal Topics
['amendment of Pleadings After Judgment' 'conduct of Litigation' 'admissions and Concessions' 'approbate and Reprobate' 'assessment of Contractual Damages' 'proof of Expenditure']
['civil Procedure' 'contract Law' 'damages'] ['amendment of Pleadings After Judgment' 'conduct of Litigation' 'admissions and Concessions' 'approbate and Reprobate' 'assessment of Contractual Damages' 'proof of Expenditure']

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Procedural Posture

Consequential Orders / Post Judgment Hearing Following Principal Judgment Concerning Consequential Issues and Whether a Fallback Figure for Skywalk Capital Expenditure Could Be Adopted

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted after judgment to rely on a fallback figure of $3,798,820 for Skywalk Capital Expenditure for the purpose of clause 5.11(c) of the Deed.' "Whether the defendant's written closing submission that the Rider Hunt estimate was the best evidence of Skywalk Capital Expenditure amounted to an admission, concession, election, waiver, estoppel or other preclusion preventing the defendant from resiling from that figure." "Whether the court should do the best it can on the available evidence to assess Skywalk Capital Expenditure where more precise evidence was obtainable and within the plaintiff's control."]

Ratio Decidendi

The plaintiff was not permitted after judgment to shift to an unpleaded fallback case based on the Rider Hunt estimate. The defendant's statement that the Rider Hunt estimate was the best evidence, understood in context, was not an admission, concession, acceptance, acknowledgement or operative assumption that Skywalk Capital Expenditure was $3,798,820, and the defendant obtained no advantage from that submission. Because more precise or better evidence of the expenditure should have been available to the plaintiff, the court would not adopt the pre-construction Rider Hunt estimate by doing the best it could.

Court Disposition

The plaintiff's attempt to have $3,798,820 adopted as Skywalk Capital Expenditure was rejected; no final consequential orders were made in this judgment.

Orders

  • ['If the parties are still unable to resolve the outstanding issues in light of the reasons, they are invited to approach the Associate to arrange a suitable listing.' 'Otherwise, the parties are invited to prepare short minutes of order reflecting the reasons.']