Liggins & Anor v Park Trent Properties Group Pty Ltd & Anor (No. 2) [2022] NSWSC 176

Supreme Court New South Wales

Medium Neutral Citation: Liggins & Anor v Park Trent Properties Group Pty Ltd & Anor (No. 2) [2022] NSWSC 176 Hearing dates: 23 February, 26 May, 6 June, 13 July & 9 August 2021 Date of orders: 3 March 2022 Decision date: 03 March 2022 Jurisdiction: Equity Before: Slattery J Decision: The date for the assessment of damages is the date that specific performance was no longer available to the plaintiffs. The four issues necessary for the parties to calculate the plaintiffs' damages for breach of contract are determined. Directions made for the parties to bring in calculations of damages. Directions made for costs issues to be determined. Catchwords: CONTRACT – damages – plaintiffs successful in an action for breach of contract against the first defendant – the parties contest four issues in relation to the calculation of damages for breach of contract – the first defendant is found to have breached a "buyback" agreement to repurchase two parcels of real estate at the same purchase price at which they were acquired by the plaintiffs from third parties – the plaintiffs originally completed the purchase of the two properties from the third parties – the plaintiffs held the properties for rental out under government schemes providing incentives to the plaintiffs for investment in affordable rental property – after the first defendant declined to repurchase both properties the plaintiffs continued to hold the properties – the first plaintiff took an assignment of the second plaintiff's interest in the two properties in an earlier judgment the Court found the defendant had breached the buyback agreement but that the plaintiffs were not entitled to specific performance of the buyback agreement – the parties have not agreed upon a single date for the assessment of damages – the parties also disagree as to what adjustments should be made to the calculation of the plaintiffs' claim for damages for breach of contract – whether in the calculation of the plaintiffs' claim for damages: (1) the full benefits received by the plaintiff under the NRAS scheme for investing in the two properties as rental housing need not be brought to account to reduce the plaintiff's claim, because the plaintiffs had allegedly forgone market rent on the properties as a result of accepting the NRAS benefits; (2) depreciation claimed on the two properties on the rental properties claimed in the plaintiffs' tax returns should be included in or excluded from the plaintiff's losses; (3) tax savings associated with the plaintiffs' future ownership of the rental properties should be brought to account in reduction of the plaintiff's losses; and (4) capital gains associated with the plaintiffs' ownership of the two rental properties up to the time of the Court's first judgment should be brought to account in reduction of the plaintiff's losses. SPECIFIC PERFORMANCE – plaintiffs' claim for the remedy of specific performance is denied but the Court finds that the defendant has breached the contract for the sale of land – plaintiffs seek damages for breach of contract – whether the appropriate date for the assessment of damages for breach of contract is the date of the breach or a later date when the remedy of specific performance is no longer available – whether it was reasonable for the plaintiffs to seek specific performance of the contract such that the date for the assessment of damages should be deferred until after the date of breach. Legislation Cited: Equity Act 1880 Income Tax Assessment Act 1997, ss 380-35, 380-10(1) and 4-10(3), 995-1 and 4-10 Lord Cairns Act 1858 Supreme Court Act 1970, s 68 Uniform Civil Procedure Rules 2005, rr 7.10(2)(a) and (b); 31.37(1), 31.41 Cases Cited: Boyns v Lackey (1958) SR (NSW) 395 C. Czarnikow Ltd v Koufos [1969] 1 AC 350 Capello v Hammond & Simmons NSW Pty Ltd [2021] NSWCA 57 Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 Chappel v Hart (1998) 195 CLR 232 Clark v Macourt (2013) 253 CLR 1 Commonwealth v Amman Aviation Pty Ltd (1991) 174 CLR 64 El Ali v Tritton [2019] NSWCA 111 Hadley v Baxendale (1854) 9 Exch 341 Johnson v Agnew [1980] AC 367 Johnson v Pérez (1988) 166 CLR 351 Liggins & Anor v Park Trent Properties Group Pty Ltd & Anor [2020] NSWSC 1113 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McKenna v Richey [1950] VLR 360 Mobis Parts Australia Pty Ltd v XL Insurance company SE (2018) 363 ALR 730 Mills v Ruthol Pty Ltd (2004) 61 NSWLR 1 Ng v Filmlock Pty Ltd (2014) 88 NSWLR 146 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 Pacific National (ACT) Ltd v Queensland Rail [2006] FCA 91 Robinson v Harman (1848) 1 Exch 850 Ruxley Electronics & Constructions Ltd v Forsyth [1994] 1 WLR 650 Synergy Health (UK) Ltd v CGU Insurance Plc [2010] EW HC 2583 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 TC Industrial Plant Pty Ltd v Roberts Queensland Pty Ltd (1963) 180 CLR 130 Van Zonneveid v Seaton [2004] NSWSC 1223 Vieira v O'Shea [2012] NSWCA 21 Wenham v Ella (1972) 127 CLR 454 Wentworth v Woollahra Municipal Council (No. 2) (1982) 149 CLR 672 Texts Cited: ER Daniell, Daniell's Chancery Practice (5th ed, 1871, Stevens & Sons, London) JD Heydon, Heydon on Contract (Lawbook Co, 2019) JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) W Lonergan, The Valuation of Businesses, Shares and Other Equity (4th ed, 2003, Allen and Unwin Sydney) D Glynn and T Rogers, Riley on Business Interruption Insurance (11th ed, 2021, Sweet and Maxwell – Thomson Reuters) Category: Consequential orders Parties: First plaintiff: Geoffrey Liggins Second plaintiff: Xiankun Wu First Defendant: Park Trent Properties Group Pty Ltd Second Defendant: Ronald Malcolm Cross Representation: Counsel: Plaintiffs: A. Gerard Defendants: R. Glasson