Churnin v Pilot Developments Pty Ltd [2008] NSWSC 831

New South Wales Supreme Court

CITATION : Churnin v Pilot Developments Pty Ltd [2008] NSWSC 831

HEARING DATE(S) : 19/02/08 [then written submissions until August]

JUDGMENT DATE : 15 August 2008

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : The motion for damages dismissed with no order as to costs. Similar orders made in the five associated matters.

CATCHWORDS : EQUITY [343]- Equitable remedies- Injunctions- Interlocutory injunctions- Undertaking as to damages- Calculation of damages- Court to offset gains against losses resultant from injunction- It is seldom just and equitable that a plaintiff bear the burden of damages not foreseeable from circumstances known at the time injunction was granted.

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 CASES CITED : Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 1545 Victorian Onion and Potato Growers' Association v Finnigan [1922] VLR 819

Brian Churnin (P1) PARTIES : Janet Churnin (P2) Pilot Developments Pty Ltd (D1) Beacon Development Corporation Pty Ltd (D2)

FILE NUMBER(S) : SC 2031/01

C Harris SC (P) COUNSEL : S Robson (Plaintiffs in associated matters) R A Parsons (D1 and D2)

SOLICITORS : Picone & Co (P) Verekers Lawyers (D1 and D2)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Friday 15 August 2008

2031/01 – CHURNIN v PILOT DEVELOPMENTS PTY LTD SUPPLEMENTARY JUDGMENT 1 HIS HONOUR: On 14 December 2007 I gave reasons for judgment on a dispute between the parties as to what was owing under an undertaking as to damages in a case where the plaintiffs' claim was ultimately unsuccessful; see [2007] NSWSC 1459. 2 There were two claimants in the end, Pilot Developments Pty Ltd (Pilot) and Beacon Development Corporation Pty Ltd (Beacon). 3 I assessed the claims, and when I say claims, I mean not only the claims involved in the present proceedings, but also in five other sets of proceedings which were heard concurrently. I found that the total amount of the Pilot claim was $380,838 and the total amount of the Beacon claim $270,209. The claims were concurrent; accordingly the Pilot claim should be allowed but not the Beacon claim. I stood the matter over to enable short minutes of order to be brought in. 4 On 19 February 2008, when the short minutes were to be brought in, I was told by Mr C Harris SC who appeared for the plaintiffs, that he was concerned that I had apparently not dealt with the issues raised in paras 10 and 13 of Dr Churnin's points of defence. 5 Paragraph 10 was that any damages which the plaintiffs were otherwise liable to pay must be offset by the increased purchase price obtained by the first defendant on resale. 6 After discussion, it was agreed that the outstanding matters including questions of interest and costs would be dealt with by way of written submissions. Unfortunately, as a result of illness and other causes, these submissions came in gradually, the final submissions being received in early August 2008. 7 I should note that I never became functus. I published reasons and stood the matter over for orders to be made. At that time, I was asked to re-examine an aspect of the case and agreed to do so. This reconsideration is not strictly speaking under the "slip rule" but is an extended part of the original hearing where before the orders are made, a party makes a proper request for the judge to consider an aspect of the case that appears to have been overlooked. 8 I need to consider the supplementary matters under the following heads: