JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [NO. 2] [2005] NSWCA 296

New South Wales Court of Appeal

CITATION: JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [NO. 2] [2005] NSWCA 296

HEARING DATE(S): On papers

JUDGMENT DATE: 2 September 2005

JUDGMENT OF: Beazley JA; Tobias JA; McColl JA

DECISION: 1. Order that the appeal be allowed in part.; 2. Set aside Orders 1, 2, 5 and 6 made by the trial judge on 5 August 2004.; 3. Set aside the Declarations in paras. 7, 8 and 9 of the Orders made on 5 April 2004.; 4. Order that there be a verdict and judgment in favour of the third appellant against the fourth and eighth respondents in the sum of $189,326.00 together with interest calculated from 22 October 2002 to the date of judgment at first instance. Thereafter, interest is payable in accordance with the Court Rules.; 5. Set aside Orders 11 and 12 made by the trial judge on 5 April 2004 ; 6. Set aside Order 3 made by the Court on 21 December 2004.; 7. Order that the first, second, third, fourth and eighth respondents pay 90% of the second appellant's costs of the appeal.; 8. Order that the second appellant pay the fifth, sixth and seventh respondents costs of the appeal limited to 10% of the costs incurred on a party/party basis incurred by the respondents on the appeal.; 9. Order that the first, fourth and eighth respondents pay the third appellant's costs of the appeal to the extent that it incurred any costs additional to the costs incurred by the second appellant.; 10. Order that the appellants pay 10% of the first, second, third, fourth and eighth respondents costs of the appeal.; 11. Order that the first, second, third, fourth and eighth respondents pay 80% of the second and third appellants costs of the summons.; 12. The first, fourth and eighth respondents pay the third appellant's costs incurred additionally in relation to the issue of the wrongful exercise of the power of sale.; 13. The second appellant is to pay 10% of the fifth, sixth and seventh respondents costs of the cross-claim