GUSTIN v TAAJAMBA PTY LTD and ANOR [1994] NSWCA 117

GUSTIN v TAAJAMBA PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 31 May 1994, 31 May 1994 [1994] NSWCA 117

EQUITY — undertaking as to damages — whether laches and delay disentitled successful party to damages — held: The delay relied on was insufficient to attract the Court's discretion to refuse equitable relief.

REAL PROPERTY ACT — caveat — recovery of damages against caveator under s98 — whether caveator had "reasonable cause" to maintain caveat — held: Interlocutory relief obtained by a caveator and payment of substantial funds into Court established "reasonable cause" within s98; (2) damages were therefore not recoverable under s98.

EQUITY — interest — party ordered to pay monies into Court — party later unsuccessful — interest awarded should ordinarily be at rates payable on funds in Courts.

Ex parte Hill [1883] 2 Ch D 644; Victorian Onion and Potato Growers Association v Finnigan (1922) VLR 819; Lamshed v Lamshed (1963) 109 CLR 440 referred to.

ORDERS

1. Appeal allowed in part.

2. Vary the Master's assessment by disallowing the damages awarded by the Master for the period after 13 October 1986.

3. The cross claimant should have the costs of the inquiry before the Master and the further costs in the Equity Division since the order of Needham J of 13 October 1986.

4. The appellant should have the costs of this appeal and the respondent is to have a certificate under the Suitor's Fund Act if qualified.

5. The Master's order with respect to interest is set aside. In lieu thereof the defendant is to have interest on the damages awarded by the Master for half the average rate payable on monies in Court for the period up to 13 October 1986, and interest after that date at the rate or rates from time to time payable in respect of moneys in Court.