Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 926

New South Wales Supreme Court

CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 926 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 30 September 2002 JUDGMENT DATE : 30 September 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 : Marsdens (P1-3) W Lawrence, a director, by leave (D1 & 2) CATCHWORDS : PROCEDURE [483] - Judgments and orders - Varying and setting aside - General rules. LEGISLATION CITED : Supreme Court Act 1970 s 94 Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785 Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 288 CASES CITED : Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296 Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338 Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 479 De L v Director-General New South Wales Department of Community Services No 2 (1997) 190 CLR 207 DECISION : Application to set aside judgment refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 30 SEPTEMBER 2002

4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: There are four matters sought to be dealt with in a notice of motion filed by the defendants on 18 June 2002 which are before me for determination today. The proceedings have a long and complex history and I have delivered a number of judgments in them. A list of my judgments to that time is in my eighth judgment: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 338 at [1]. Those relevant to the matters in hand are as follows. 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"). 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"). On 8 April 2002 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"). The following day I delivered a judgment which determined the basis of calculation of the monetary judgment: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 289 ("my sixth judgment"). On 11 April 2002 I delivered a judgment in which I decided that I should allow Mr Lawrence to make a last attempt to raise a defence to the $232,000 claim concerning the proceeds of sale of lot 11 and lot 12 in the form of an application for me to withdraw my reasons for judgment in relation to the $232,000 and permit him to agitate that defence further: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 296 ("my seventh judgment"). On 22 April 2002 by my eighth judgment (see above) I refused that application, dealt with the costs of the proceedings and made final orders. On 31 May 2002 I delivered a judgment granting leave to bring the present application before me: Alanbert Pty Ltd v Bulevi Pty Ltd [2002] NSWSC 479 ("my ninth judgment"). 2 The first two matters before me today are in effect applications to set aside final orders made at the time of my eighth judgment. One of those orders was judgment in favour of the plaintiffs for some $312,000. That sum was made up as follows. From the $232,000 mentioned above there was to be deducted $3,386, which I found to be owing by the plaintiffs to the defendants in relation to a series of complicated setoffs between them. On the difference between those two sums I allowed interest under s 94 of the Supreme Court Act 1970 from the time that the $232,000 had been received by the defendants until the date of judgment. I made that order for interest as doing substantial justice between the parties as far as interest was concerned, bearing in mind the considerations then before me: see my sixth judgment at [9]. 3 The two applications to set aside those orders relate to two separate items which the defendants say they ought be allowed to contest further. The first in effect relates to the $80,000 odd interest which I have just mentioned. It is suggested that the reason the interest should not have been allowed was because the delay in payment arose from the protracted accounting or setoff procedures I have referred to, at the end of which the plaintiffs were found to be indebted to the defendants in respect of the items dealt with in that process (other than the proceeds of lots 11 and 12). However, as I have said, that was the factual situation at the time that I previously dealt with the matter and was among the circumstances considered then, and there is no reason why, after final judgment, it should be reconsidered now. There is no basis shown in relation to that item why the judgment should be set aside. It is simply an attempt to relitigate a matter already litigated and decided. 4 The second item relates to a claim that there was omitted from the process of accounting or setoffs the sum of $198,000 said to be owed by the plaintiffs to the defendants for the doing of certain road work. When this application was first mooted it was suggested that this had been left out of the process simply by inadvertence and that the defendants, who are not now legally represented but are represented by leave by Mr W J Lawrence, a director, were disadvantaged in a large sum by their inadvertence in not bringing forward this item. 5 This application is made after final orders, so that the defendants would face all the difficulties that arise in such a situation in setting aside orders: De L v Director-General New South Wales Department of Community Services No 2 (1997) 190 CLR 207 especially per Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 215. But if there had been some inadvertent omission of an item there would at least have been a case for there to be weighed up carefully the injustice that would be done by inadvertent omission of a large item against the public interest, and indeed the plaintiffs' interest, in there being finality to litigation. 6 However, when the matter is examined today, with the aid of detailed and helpful written submissions by Mr Fairbairn, of counsel for the plaintiffs, it appears that it is quite impossible for the defendants to make out that this is a case of inadvertent omission for four reasons. There is a pleading reason, a reason relating to the findings made, an evidentiary reason and a reason or reasons relating to the defendants' conduct of the proceedings. I shall in a moment turn to these four areas separately, but I should first say a little more about the basis on which the claim of inadvertent omission is made. 7 The main thrust of the claim appears to be that there was a special condition in the 1994 contracts, as they are referred to in my earlier judgments, under which the plaintiffs were to be liable to the defendants for the costs of subdivision of lots 15 and 16 (as they were then called), which it is said included road works, the cost of which was some $198,000. As will appear shortly, there are various versions at large of the alleged special condition, but the general thrust of them can be illustrated by one example as follows: "Q. The Vendors agree to pay for the cost of subdivision of lot 16 from lot 15." 8 The first area of difficulty that the defendants have with this claim is on the pleadings. True it is that there is some adversion to this claim in their amended cross claim. That adversion appears in paragraph 33 in the following form: "33 In or about July 1995 Bernoth approached Lawrence requesting a 175 metre extension that [sic] the road subsequently known as Ethel Place to allow for improved access to lot 12 of the subdivision. Lawrence advised Bernoth that the cost of extending the road would be $102,005.00. Bernoth persuaded Lawrence that that expenditure would provide a valuable return in that it would allow greater access to the existing subdivision and increase the value of the subdivision by in excess of $100,000.00. On or about 7 November 1995 Lawrence agreed to extend the road and did so."