MK & JA Roche Pty Ltd & Ors v Metro Edgley Pty Ltd & Ors [2006] NSWSC 970

New South Wales Supreme Court

CITATION : MK & JA Roche Pty Ltd & Ors v Metro Edgley Pty Ltd & Ors [2006] NSWSC 970

HEARING DATE(S) : 14/9/06

JUDGMENT DATE : 20 September 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Order for interest limited to period post accrual of cause of action.

CATCHWORDS : Interest - Costs

LEGISLATION CITED : Civil Procedure Act 2005 (NSW)

MK & JA Roche Pty Limited (ABN 25 076 529 952) (First Plaintiff) Michael Kevin Roche, Christopher John Roche, William Timothy Roche, (Second Plaintiff) PARTIES : Kevin Michael Roche, Gabrielle Mary Roche (Cross Defendants) Metro Edgley Pty Limited (ABN 37 082 440 042) (First Defendant) Multiplex Limited (formerly Multiplex Constructions Pty Limited (ACN 008 687 063) (Second Defendant)

FILE NUMBER(S) : SC 50069/04

Mr DJ Hammerschlag SC, Mr VF Kerr (Plaintiffs) COUNSEL : Mr CR Newlinds SC, Ms RS Francois (Defendants) Mr Kunc (Cross Defendants)

Lane & Lane (First to Fourth Plaintiffs) SOLICITORS : Baker and McKenzie (Cross Defendants) Clayton Utz (Defendants)

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

EINSTEIN J

Wednesday 20 September 2006

50069/04 - M K AND J A ROCHE PTY LIMITED AND ORS v METRO EDGLEY PTY LIMITED AND ORS

JUDGMENT The matters remaining for decision 1 Following the delivery of the judgment [2004] NSWSC 744 there remain for decision only questions concerning interest and costs. The terms of the other orders are agreed. The claim for interest 2 The Court has found that Roche is not estopped from relying on the automatic rescission of the Development Contract and Fitout Deed on 31 March 2004 and of the Agreement for Sublease on 31 March 2003. 3 The Court of Appeal held that the effect of automatic rescission is that Roche is entitled to the return of its $2 million deposit. The Court proceeds upon the basis that there was no issue on the pleadings but that the deposit was paid on 26 September 2003. 4 The Court of Appeal did not in terms, remit any question concerning the making of orders in relation to return of the deposit. Nor did the Court of Appeal examine or treat with the subject of the proper approach to the question of interest on the deposit. This notwithstanding, all parties have been at one in urging the Court to determine the question of interest on the deposit. It seems efficient for the Court to accede to these requests. 5 The Development Contract did not include any express provision dealing with the question of whether or not in the event that the deposit required to be refunded to Roche, interest on the deposit would be payable at all or if so, the date from which interest would be payable.