Shoreham Park Pty Limited v John Foote Bloodstock Pty Limited & Anor [2002] NSWSC 820

New South Wales Supreme Court

CITATION : Shoreham Park Pty Limited v John Foote Bloodstock Pty Limited & Anor [2002] NSWSC 820 FILE NUMBER(S) : SC 50058/02 HEARING DATE(S) : 3/09/02 JUDGMENT DATE : 3 September 2002

Shoreham Park Pty Limited (Plaintiff) PARTIES : John Bloodstock Pty Limited (1st Defendant) Emily Krystna Pty Limited (2nd Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr D Kell (Plaintiff) Mr D Villa (Defendants) SOLICITORS : Hemphill & Co (Plaintiff) Moray & Agnew (Defendants) CATCHWORDS : Practice and procedure - Costs - Interest on contract up to Judgment - Interest as provided in rules thereafter Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 Economic Life Assurance Society v Usborne [1902] AC 147 Fewings (1884) 25 Ch D 338 Idoport Pty Limited v National Australia Bank Limited (2000) 49 NSWLR 51 CASES CITED : State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Murray v Figge (1974) 4 ALR 612 Re Barrell Enterprises [1972] 3 All ER 631 Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 Wentworth v Woollahra Municipal Council (No. 2) (1982) 149 CLR 672 Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 DECISION : Judgment against first defendant for $639,582.19.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

EINSTEIN J

Tuesday 3 September 2002 ex tempore Revised 17 September 2002

50058/02 SHOREHAM PARK PTY LIMITED v JOHN FOOTE BLOODSTOCK PTY LIMITED & ANOR JUDGMENT 1 In these proceedings a reserved Judgment was delivered on 30 August 2002. The matter has been before the Court today for the purpose of the Court hearing submissions as to costs and for the parties to bring in short minutes of order. 2 There is no issue between the parties but that as far as the costs orders are concerned, the orders should be an order that the first defendant pay the plaintiff's costs of the proceedings and that there be no order as to costs as between the plaintiff and the second defendant, so that insofar as the plaintiff's claim against the second defendant is concerned neither the plaintiff nor the second defendant is to be ordered to pay the costs of the other. 3 The issues which now separate the parties concern the defendants application to re-open the hearing for the purpose of putting forward a claim that the interest claimed by the plaintiff as payable on the unpaid purchase price and other monies calculated on a daily basis at the rate of fifteen per cent per annum, should be held to be a penalty. 4 Mr Villa for the defendants has made plain that on his instructions an application to re-open for this purpose should be acceded to. 5 Whilst Mr Villa has indicated that his client is content to file a formal notice of motion and a formal affidavit in support in this regard, he has made quite plain from the bar table what the notice of motion would cover and what the affidavit evidence would cover. Essentially the application would be to seek leave a) to re-open the judgment; b) to amend the form of grounds of defence which had been before the Court prior to the judgment being delivered. The amendment would raise the claim that the Inglis Conditions of Sale paragraph 9.7 provision for interest to be payable on the unpaid purchase price and other monies calculated on a daily basis at the rate of fifteen per cent per annum, constitutes an unenforceable penalty. 6 The basis on which such application is pressed is simply that the matter was overlooked by those advising the defendants and as I have understood Mr Villa who has shortly addressed, there is an acceptance that this is a matter which would have required to be specially pleaded. 7 The record will show that the Contentions section of the further amended summons in paragraph 18 read as follows: