Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 Hearing dates: 2 February 2023 Decision date: 22 February 2023 Before: Leeming JA at [1]; Kirk JA at [106]; Griffiths AJA at [107] Decision: (1) Appeal dismissed in respect of grounds 1-8. (2) Direct the parties to file and serve within 14 days of today orders by consent or alternatively the orders for which they contend and submissions not exceeding four pages in support thereof, with further submissions to be filed and served within 21 days of today not exceeding two pages in length in response, with a view to this Court making orders for further steps to be taken in this appeal. Catchwords: APPEAL – challenge to factual findings – transfer of land – where defendants contended that consideration provided by $302,000 in banknotes – no documentary records available – whether primary judge erred in finding defendants' case not established PLEADINGS – vendor executed joint venture agreement with sole director and shareholder of purchaser – no shares issued to purchaser in accordance with agreement – plaintiff sued for breach of contract – no challenge to finding by primary judge that joint venture agreement not contractual – primary judge found that purchaser represented to vendor that the land would be developed in accordance with joint venture agreement – no case based on misrepresentation pleaded – whether open to primary judge to make findings based on unpleaded case – unpleaded case was opened and cross-examined upon without objection – parties to be taken to have litigated unpleaded case EQUITY – unconscionable conduct – special disadvantage – whether primary judge erred in finding defendants unconscientiously exploited special disadvantage known to them – orders in nature of rescission – need to bring to account payment made by one defendant whose claim was compromised prior to trial Legislation Cited: Civil Liability Act 2002 (NSW), s 34 Contracts Review Act 1980 (NSW) Evidence Act 1995 (NSW), s 136 Powers of Attorney Act 2003 (NSW), s 21(1) Real Property Act 1900 (NSW), s 36(11) Supreme Court Act 1970 (NSW), s 75A Cases Cited: Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820 Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009 Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Blatch v Archer (1774) 1 Cowp 63; 68 ER 969 Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Creque v Penn [2007] UKPC 44 Data Transfer Services Pty Ltd v White [2023] NSWCA 16 Doyle v Commissioner of Police [2020] NSWCA 11 Ellis v Central Land Council (2019) 267 FCR 339; [2019] FCAFC 1 Fischer v Nemeske Pty Ltd (2016) 257 CLR 615; [2016] HCA 11 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490; [1916] HCA 81 Greer v Kettle [1938] AC 156 Gwe v Commissioner of the Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Petersen v Moloney (1951) 84 CLR 91; [1951] HCA 57 Prime Sight Ltd v Lavarello [2014] 1 AC 436; [2013] UKPC 22 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298; [1989] HCA 13 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Sibley v Grosvenor (1916) 21 CLR 469; [1916] HCA 14 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Talevski v Talevski [2007] NSWSC 945 Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 Wilson v Keating (1859) 27 Beav 121; 54 ER 47 Texts Cited: K Handley, "Reinventing Estoppel in the Privy Council" (2014) 130 LQR 370 Category: Principal judgment Parties: Kimberley Developments Pty Ltd (First Appellant) Theofanis Trigas (Second Appellant) Super Start Batteries Pty Ltd (Third Appellant) Albert Darwiche (Fourth Appellant) Francoise Bale (Respondent) Representation: Counsel: W G Muddle SC with R Perla and M Short (Appellants) D P O'Connor with C Langford (Respondent)