Cleve Smith Excavations Pty Ltd v Hodgson [2010] NSWDC 230

New South Wales District Court

CITATION: Cleve Smith Excavations Pty Ltd v Hodgson [2010] NSWDC 230

HEARING DATE(S): 19, 20, 21, 22, 26, 27, 28, 29 October, 2 & 3 November 2009

JUDGMENT DATE: 13 October 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

1. Verdict for the plaintiff on the plaintiff's claim against the defendant in the sum of $108,148.76; DECISION: 2. Verdict and judgment for the defendant/cross claimant on the cross claim against the plaintiff in the sum of $126,743; 3. The set-off of the respective claims and entry of final judgment is deferred pending the parties being heard on the outstanding questions of interest and costs. In this regard, each party is directed to provide written submissions on the issues, limited to no more than 5 pages, including setting out the contended interest calculations consequent upon my findings and the contended costs consequences of the set-off of such calculations. In the case of the plaintiff, those submissions are to be filed and served within 7 days; in the case of the defendant, those submissions are to be filed and served within 14 days.

CATCHWORDS: LEASES – extractive industry carried out on land leased as a quarry – mining of sandstone deposits for bricklayer's sand – whether lessor's refusal to allow sand extraction in specified areas of quarry was unreasonable – claims concerning unpaid rent, maintenance on buildings, plant and equipment, environmental rehabilitation of the land and contribution towards legal fees in respect of lease of the premises – cross claim concerning repairs to dangerous electrical installation – economic loss and contribution to legal costs in respect of proceedings in Land and Environment Court – construction of lease to rectify mistaken description of party named in the contract - DAMAGES – breach of contract – lease – measure of damages for breach of conditions of lease – interest to be treated as rent in arrears – whether compound interest permitted