Kalls Enterprises Pty Ltd (In Liquidation) & Ors v Baloglow & Anor [2007] NSWCA 191

Reported Decision: 63 ACSR 557 Appeal Outcome: Special leave application refused with costs by the High Court - 7 March 2008

New South Wales Court of Appeal

CITATION: Kalls Enterprises Pty Ltd (In Liquidation) & Ors v Baloglow & Anor [2007] NSWCA 191 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10, 11 and 23 May 2007

JUDGMENT DATE: 9 August 2007

JUDGMENT OF: Giles JA at 1; Ipp JA at 210; Basten JA at 230

DECISION: (1) Appeal allowed; (2) Set aside orders 1, 3 and 5 in the form of orders dated 5 July 2006 recording orders made by the trial judge and in lieu thereof order: (2.1) that there be judgment for the second plaintiff against the first defendant for $555,000 plus interest as calculated by the second plaintiff and the first defendant and notified to the Registrar, or in the event of disagreement upon calculation as determined by the Court upon written submissions filed in accordance with order 3 below; and (2.2) that the first defendant pay the plaintiffs' costs; (3) Direct that the second appellant and the first respondent calculate the interest and notify the Registrar of the calculated amount within 14 days, and that in the event of disagreement upon calculation the second appellant file written submissions stating the interest for which it contends and the reasons therefor within a further 14 days and the first respondent file responsive written submisisons within a further 14 days; (4) Order that the first respondent pay the appellants' costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified; (5) Order that the appellants pay the second respondent's costs of the appeal relating to repayment of the $5,000 paid pursuant to order 5 made by the trial judge; (6) Cross-appeal dismissed; (7) Order that the cross-appellant pay the cross-respondent's costs of the cross-appeal; (8) Reserve liberty to the appellants to apply for an order for repayment of the $5,000 referred to in order 5 made by the trial judge and variation of order 5 above, any such application to be made by notice of motion filed within 14 days accompanied by written submissions with responsive written submissions within a further 14 days; the Court's determination to be made upon the written submissions.