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. Immediately after the passage from the trial judge's reasons reproduced above he said that agreement was indeed reached at the meeting, but that it was not a legally binding one. It was the question whether it was legally binding or not that was the main issue in the appeal and the plaintiffs succeeded upon it. In saying agreement was reached at the meeting, it is clear that the trial judge was referring to the whole of the agreement he had just recounted, including the term for compensation. Despite the difference in the two versions of the contract relied upon by the Plaintiffs, it seems plain that the Plaintiffs intended to press for a finding that the contract contained the term for compensation. The trial judge accepted the facts necessary for such a finding, although in regard to what he considered a non-binding agreement, and this Court proceeded on essentially the same facts in 2 UNREPORTED JUDGMENTS coming to the conclusion that the agreement was binding. We think therefore that the contract to be embodied in the Court's orders should include the term for compensation alleged by the plaintiffs. The defendant at first objected also to another aspect of the orders to be made. The Plaintiffs sought an order referring to the Master the assessment of damages payable to them for breach of the defendant's promise they would be relocated by September 1986. This was objected to on two grounds1. It was said the order assumed there had in fact been such damages, and no such claim had been made in the statement of claim. When the court pointed out that the defendant's position on the first aspect of this objection could be Protected by the form of the order, and that general convenience made it undesirable for the damages question to be left to fresh Proceedings, counsel for the defendant very sensibly withdrew the first objection. Any orders for amendment of the Proceedings can therefore be made by consent before the Master. 2. The second objection was that the evidence did not support September 1986 as a definitely agreed date. However, it seems to the Court that Waddell J's findings of fact were to that effect, and there is no reason why they should be disturbed. Accordingly the Court now makes orders substantially in the form of the plaintiffs' draft, as follows: 1. Appeal upheld. Judgment below set aside. 2. Declare that on 13 February 1986 the appellant and the respondent entered into a binding contract, the terms of which were: (a) the appellants would vacate the Lot 6 in plan annexed to Lease No T276889; (b) the respondent would re locate the appellants' business in concession 7 of the redevelopment of jetty No 4; (c) the said relocation would take place by September 1986; (d) the respondent would compensate the appellants for the loss of business between 17 March 1986 and the 31 July 1986; (e) from the date of occupation of the new premises the rental thereof would remain the same as under the existing lease until | January 1988; (f) a new lease for a term of five years from 1 January 1988 would be granted to the appellants at a commencing rental of $32,000.00 per annum but otherwise subject to the same terms and conditions as Lease registered number T276889; provided that the fitting out of the premises was in accordance with the respondent's fit out guide and the appellants cooperated with the respondent's merchandising strategy within the range of uses permitted by the lease. 3. Order that paragraphs (b) and (f) be specifically performed by the respondent. 4. Order that the question of the compensation payable pursuant to paragraph (d) in Order 2 above be referred to the Master for assessment. 5. Order that it be referred to the Master to assess what, if any, damages are payable to the appellants by reason of the breach of paragraph (c) of order 2 above. 6. Order that the respondent pay the appellants' costs of these proceedings and proceedings in the Equity Division.