Supreme Court New South Wales Medium Neutral Citation: Hunt Leather Pty Ltd v Transport for NSW (No 3) [2023] NSWSC 1598 Hearing dates: 13 and 14 December 2023 Date of orders: 14 December 2023 Decision date: 14 December 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: 1. Judgment on the funding fee issue is reserved. 2. Amendment to the principal judgment in accordance with the slip rule as per this judgment. 3. Direct the parties to provide my Chambers with an email setting out the amounts of the judgments for both Hunt Leather and Ancio. Category: Procedural rulings Parties: Hunt Leather Pty Ltd (First Plaintiff) Sophie Hunt (Second Plaintiff) Ancio Investments Pty Ltd (Third Plaintiff) Nicholas Zisti (Fourth Plaintiff) Transport for NSW (Defendant) Representation: Counsel: A Bannon SC with A Hochroth (Plaintiffs) D McLure SC with N Simpson (Defendant) Solicitors: Banton Group (Plaintiffs) Lander & Rogers (Defendant) File Number(s): 2018/263841 Publication restriction: None REVISED EX TEMPORE JUDGMENT 1. This matter came before me on 13 and 14 December 2023 for the hearing of three substantive, being: 1. the plaintiffs' claim for inclusion of the funder's fee commission as a head of damages; 2. finalisation of the amount of the damages to be awarded for each of the lead plaintiffs, being Hunt Leather and Ancio; and 3. an application under the slip rule. 1. I heard submissions on the funding fee argument and my judgment on that issue is reserved. 2. The assessment of damages in respect of Hunt Leather is agreed, subject to calculations of interest. 3. I directed the parties to agree on interest and provide my Chambers with a final figure so that judgment can be entered in favour of Hunt Leather for a specific sum. 4. I emphasise that, as agreed by the parties, that judgment would be subject to an additional award of damages in respect of the funder's fee. The plaintiffs claim that every plaintiff should be entitled to an additional 40% on top of the damages assessed on account of the funder's fee. It follows that, should I accept the plaintiffs' argument, the amount of the damages to be awarded to Hunt Leather would be increased by 40%. I do not apprehend that there is any dispute about that, but lest there be any argument about final judgments, this is only the final judgment in favour of Hunt Leather if Hunt Leather does not succeed on its argument about the funder's fee (that is, if the answer to common question 10 is against the plaintiffs). 5. In respect of Ancio, a number of issues arise. Mr Hochroth, on behalf of the plaintiffs, relied on a notice of motion under the slip rule. The defendant did not consent or oppose to orders being made under the slip rule; in particular, the defendant did not make any submissions contrary to the plaintiffs' submissions about the error in the calculation of the date of the period of nuisance for Ancio. 6. In paragraph [1108] of the judgment (Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840), I inadvertently used the word revenue in line 1 of subparagraph [1108(1)] and line 1 of subparagraph [1108(2)]. I should have used the word "profit", and the judgment will be amended to substitute the word "profit" where it appears in those two subparagraphs. 7. Mr Hochroth submits that there was also an error by way of an accidental slip in calculating the date on which the period of the nuisance commenced for Ancio. 8. In paragraph [936] of the judgment, I found that I would adopt Mr Griffiths' amended Initial Delivery Program ("IDP") as an appropriate measure for determining the point at which the interference with the land became unreasonable. I set out a table in paragraph [935] of the judgment. I identified Mr Griffiths' corrected IDP occupation period as between 12 December 2016 and 3 September 2017. On that basis, I commenced the period of nuisance for Ancio on 3 September 2017. 9. Mr Hochroth points out that, in fact, I had already found that the period of interference commenced for Ancio in May 2016 and, thus, my table (which set out the occupation period as commencing on 12 December 2016) was incorrect. 10. I accept that what I had intended to find in the table at paragraph [935] and the finding at [936] was that there was a specific period during which the works on behalf of the defendant were reasonable but, after a specific period, the work became unreasonable, such that that was the date on which the period of nuisance commenced. 11. In those circumstances, I accept that the commencement of the period of nuisance for Ancio on 3 September 2017 was an accidental slip. The date in the table is incorrect and inconsistent with my earlier findings. The period of nuisance for Ancio should commence on 27 January 2017 and end on 28 February 2019. The date will be amended in the table at [935] of the judgment and also at paragraphs [938] and [1108(1)] and [1108(2)]. 12. The final issue in respect of damages is how to assess Ancio's loss. There was an issue between the parties as to whether, for the purposes of assessing Ancio's loss of profit, it is appropriate to have regard to the financial period ending 30 June 2016 or the financial period ending 30 June 2015. I intended that the assessment of the loss of profit would be made with reference to the financial period ending 30 June 2015. The reason is that it would be unfair to use the period ending 30 June 2016 as the benchmark for assessing loss of profit because, during that period, Ancio was subject to a substantial (although not unreasonable) interference. At that time, there was already an interference with its business. 13. As such, it is necessary go to back to the period when there was no interference to make some determination of the anticipated profit absent the nuisance for the period of the nuisance. In the end, the defendant accepted that approach. 14. I will reserve my decision on the plaintiff's claim for the funder's fee as a head of damages, and I will let the parties know when it is available. 15. I direct the parties to provide my Chambers with an email setting out the amounts of the judgments for both Hunt Leather and Ancio, noting that what I said about Hunt Leather and the funder's fee also applies to Ancio. If the parties are unable to reach agreement on the final figure, I will be available in the first week of term next year to hear further argument on the dispute, but I expect that it will all be resolved. ********** Amendments 05 January 2024 - Amendment to Counsel's name on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 January 2024