GEFTAKIS v MARITIME SERVICES BOARD [1988] NSWCA 48

GEFTAKIS v MARITIME SERVICES BOARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MCHUGH JJA 24 May 1988

[1988] NSWCA 48

Kirby P, Priestley and McHugh JJA Argument upon the form of orders to be made in this appeal raised the question whether the reasons published on 20 November 1987, which concluded that specific performance should be ordered of the contract alleged by the plaintiffs, required that a term of that contract should be that the defendant compensate the plaintiffs for loss of business between 17 March and 31 July 1986.

Counsel for the plaintiffs had been asked during the argument of the appeal precisely what was the contract contended for. He answered by saying it could be found in two places; the first in a particular passage of the trial judge's reasons and the second in par 7 of a document which had been handed to the court in the course of argument, called "Findings of Fact which his Honour Should Have Made". The passage in the trial judge's reasons referred to, said: "The plaintiffs rely upon this meeting as having resulted in a legally binding agreement between themselves and the defendant to the effect of that pleaded in the statement of claim, namely, that they would vacate their premises by 17 March 1986 (the defendant subsequently varied 13 March to this date) and the defendant agreed that it would locate their business by September 1986 in Concession 7 of the redevelopment of Jetty No 4 and would compensate them for loss of business between 17 March and 31 July 1986 and that from the date of occupation of the new premises until 1 January 1988 the rent would remain the same as under the existing lease and that a new lease for five years from | January 1988 would be granted at a commencing rental of $32,000 per annum but otherwise subject to the same terms and conditions as their existing lease except that there would be a condition that they comply with the requirements of the fit-out guide." This passage shows the plaintiffs were asserting the compensation term both at the trial and the appeal. On the other hand, par 7 of the document referred to, which was reproduced in substance at p 11 of the reasons of Priestley JA in the sentence commencing "The revised claim was that..." did not refer to the compensation term.