Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289

New South Wales Supreme Court

CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 9 April 2002 JUDGMENT DATE : 9 April 2002

Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Bertram Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J

COUNSEL : A Fairbairn (P1-3) W Lawrence, a director, by leave (D1 & 2) SOLICITORS : John Saroff & Company (P1-3) W Lawrence, a director, by leave (D1 & 2) CATCHWORDS : PROCEDURE [500] - Judgments and orders - Set-off of judgments - General principles. Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470 CASES CITED : Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610 Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785 Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288 DECISION : Basis of calculation of monetary judgment determined. Plaintiffs not entitled to have any amount secured under the mortgage to which they are entitled.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

TUESDAY, 9 APRIL 2002

4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & ANOR JUDGMENT 1 HIS HONOUR: I delivered my substantive judgment in this matter on 6 April 2000: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 ("my first judgment"). On 26 May 2000 I delivered a judgment which determined that Alanbert Pty Ltd was entitled to a second mortgage over Lot 13 to secure any part of the balance purchase price of $225,000 that remained outstanding: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470 ("my second judgment"). On 30 June 2000 I gave further reasons for the form of my orders: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610 ("my third judgment"). By a judgment delivered on 30 August 2001 I defined the issues as to monetary claims which remained to be determined between the parties: Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785 ("my fourth judgment"). Yesterday I delivered a judgment which essentially determined the last disputed items between the parties other than accounting items: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288 ("my fifth judgment"). I now proceed to deliver judgment on the monetary judgment which should be entered between the parties and also as to whether there remains outstanding any monetary amount which is secured under the mortgage to which I have found the plaintiffs entitled. Both parties have today brought in further written submissions and, in addition, submissions previously brought in before me last August by both parties, have been relied on. 2 As to the monetary judgment, Mr Lawrence, a director who has been appearing for the defendants by leave, has included in his submissions a calculation under the heading Balance of Moneys, which shows a balance in the defendants' favour of $4,733. There is a clerical error in his calculation. When that is corrected, the balance in the defendants' favour is $3,887, and the calculation is as follows: 1 Moneys paid to Bernoth Realty $ 99,830 Less Commissions $ 25,209 Less Incentives $ 18,500 $ 43,709 $ 43,709 $ 56,121