NSW Caselaw
New South Wales District Court
CITATION: Kevin Lucas & KDL Building Pty Limited v Robert Montgomery and Anor [2008] NSWDC 207
JUDGMENT DATE: 15 July 2008
JURISDICTION: District Court of New South Wales
JUDGMENT OF: Cogswell SC DCJ at 1
DECISION: Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, orders 2 and 3 made by Phegan DCJ on 8 April 2008 are vacated and instead I make the orders listed in paras (a), (b), (c) and (d) of para 1 of the Notice of Motion dated 2 July 2008. Pursuant to r 36.17 of the Uniform Civil Procedure Rules I make order 2 in the Notice of Motion. I make orders 3 and 4 in Notice of Motion. Each party will bear their own costs of the motion.
CATCHWORDS: Slip rule - Can joint judgment against two defendants be corrected to separate judgments against each? - Stay pending appeal - Capacity of defendant to pay
r 36.17 Uniform Civil Procedure Rules 2005 LEGISLATION CITED: s56 Civil Procedure Act 2005 ss 92, 94 Home Building Act 1989
Amorin Constructions Pty Limited v Kamtech Electrical Services Pty Limited [2008] NSWSC 285 CASES CITED: Newmont Yandal Operations Pty Limited v J Aron Corporartion & The Goldman Sachs Group Inc [2007] NSWCA 195 Re Neate and Anor Ex Parte Pegasus Leasing Limited (1995) 57 FCR 40
Kevin Lucas PARTIES: KDL Building Pty Limited Robert Montgomery and Anor
FILE NUMBER(S): 1122 of 2006
COUNSEL: Mr Bland for the Plaintiffs/cross defendants Mr Neal for the Defendants/cross claimants
JUDGMENT 1. Kevin Donald Lucas and his company KDL Building Pty Limited are builders. They were to build a new house at Fairlight for Robert and Michelle Montgomery. Disputes arose between the builders and the owners (that is, the Montgomerys). The owners terminated the building contract. The builders sued the owners for breach of contract and other causes of action. The owners cross claimed against the builders. The owners claimed that it was the builders who breached the contract and they sought damages from the builders.
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