Mills & Anor v Ruthol Pty Ltd [2005] NSWSC 568

New South Wales Supreme Court

CITATION : Mills & Anor v Ruthol Pty Ltd [2005] NSWSC 568

HEARING DATE(S) : 8 June 2005

JUDGMENT DATE : 8 June 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Application refused with costs.

CATCHWORDS : PRACTICE AND PROCEDURE - FINALITY - Whether a party should be entitled to re-agitate an issue determined at a final hearing because its lawyers have thought of a point which could have been raised.

Real Property Act 1900 (NSW) - s.53 LEGISLATION CITED : Supreme Court At 1970 (NSW) - s.68

Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 CASES CITED : Mercantile Credits Limited v Shell Co of Australia Ltd (1976) 136 CLR 326

Brian Mills - First Plaintiff PARTIES : Elaine Mills - Second Plaintiff Ruthol Pty Ltd - Defendant

FILE NUMBER(S) : SC 2101/99

N.A. Cotman SC - Plaintiffs COUNSEL : R.S. Angyal SC - Defendant

McCabe Terrill - Plaintiffs SOLICITORS : David Landa Stewart - Defendant

LOWER COURT JURISDICTION :

1 This matter has had a long and troubled history. The proceedings commenced in 1999 with proceedings initiated by the Plaintiffs, Mr and Mrs Mills, seeking specific performance of an option for purchase of certain property owned by Ruthol Pty Ltd. Those proceedings were complicated by the fact that Tricon (Aust) Pty Ltd had been granted an option to purchase the same property. The option was granted in a lease from Ruthol which was registered. 2 There was a competition not only between Mr and Mrs Mills and Ruthol as to whether Mr and Mrs Mills had validly exercised their option for purchase, but between the Mills and Tricon as to which of the two of them had priority in respect of their respective interests in the property. 3 On 15 April 2002 I found that the Mills were entitled to specific performance of the option which they had been granted by Ruthol and that Tricon was entitled to damages for breach of contract. There was an appeal. 4 The Court of Appeal held that the Mills had validly exercised the option granted by Ruthol but that the interest of Tricon in the property prevailed over the interest of the Mills, so that Tricon was entitled to specific performance of the contract for sale of the property which had come into existence when Tricon exercised the option which had been granted to it under its lease. 5 It followed that the Mills were entitled to damages for breach of the contract which had come into existence when they validly exercised the option granted to them. 6 The assessment of the damages payable to the Mills was referred to the Master for assessment. Questions of principle arose between the parties affecting the manner in which the damages should be assessed. 7 On 5 May 2004 I directed, pursuant to Pt 31 of the Supreme Court Rules 1970 (NSW), that there be separately determined the question as to the date at which damages were to be assessed. The parties formulated the questions for determination. They are set out in a letter from Ruthol's solicitor to the Mills' solicitor of 28 May 2004. The questions for determination were as follows: "1. Whether the Plaintiffs are entitled to recover from the Defendant damages pursuant to s68 of the Supreme Court Act 1970; and