Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 Hearing dates: On the papers Decision date: 09 November 2011 Before: Allsop P at 1 Basten JA at 1 Young JA at 1 Decision: 1.Appeal allowed in part. 2.The unnumbered third order made by the Court on 19 April 2010 dismissing the further amended statement of claim of Bullabidgee Pty Ltd ACN 125 772 483, Towool Pty Ltd ACN 125 772 821, Towool West Pty Ltd ACN 125 772 670, Towool Water Pty Ltd ACN 125 772 723, Warrawool Pty Ltd ACN 125 772 769, Warrawool North Pty Ltd ACN 125 772 796, Warrawool Water Pty Ltd 125 772 778, MHD Echuca Pty Ltd ACN 108 901 579 and Mr Ian Tayles (the "purchasers") be set aside. 3.The declaration numbered 4 made by the Court on 19 April 2010 as to the entitlement of Mr Brian John McCleary and Mr Peter Joseph Rae (the "vendors") to forfeit the deposits be set aside. 4.The unnumbered order made by the Court on 19 April 2010 that the purchasers pay the vendors' costs of the proceedings at first instance be set aside. 5.Set aside the unnumbered judgment of 19 April 2010 and in place thereof give judgment for the purchasers (other than MHD Echuca Pty Ltd ACN 108 801 579 and Mr Ian Tayles) against the vendors in the sum of $183,404.33, such judgment to take effect on 20 April 2010. 6.The further amended statement of claim filed by the purchasers be otherwise dismissed. 7.The appellants pay 20 per cent of the respondents' costs of the proceedings at first instance. 8.The respondents pay 50 per cent of the appellants' costs of the appeal. 9.The parties have leave to file within 14 days a notice of motion to vary, or consent orders varying, the terms of these orders. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ORDERS - costs - no question of principle. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98(1), 100, 101 Uniform Civil Procedure Rules 2005 (NSW), Pt 42, r 42.1, Pt 36, r 36.7 Cases Cited: Ohn v Walton (1995) 36 NSWLR 77 Category: Consequential orders Parties: Bullabidgee Pty Ltd (First Appellant) Towool Pty Ltd (Second Appellant) Towool West Pty Ltd (Third Appellant) Towool Water Pty Ltd (Fourth Appellant) Warrawool Pty Ltd (Fifth Appellant) Warrawool North Pty Ltd (Sixth Appellant) Warrawool Water Pty Ltd (Seventh Appellant) MHD Echuca Pty Ltd (Eighth Appellant) Ian Tayles (Ninth Appellant) Brian John McCleary & Peter Joseph Rae (First Respondent) JP & M Kerr (Billabidgee) Pty Ltd (Second Respondent) Bullatale Pastoral Pty Ltd (Third Respondent) Representation: R S Angyal SC, A D Justice (Appellants) B A Coles QC, S Galitsky (Respondents) Maurice Blackburn Commercial Lawyers, Melbourne (Appellants) Francis Kelly & Grant, Deniliquin (Respondents) File Number(s): 2008/278153 Decision under appeal Date of Decision: 2010-04-19 00:00:00 Before: Brereton J File Number(s): 2008/277814; 2008/278153