Napiat Pty Ltd & Anor v Bema Gold (Australia) Pty Ltd [2012] NSWSC 326

Supreme Court New South Wales

Medium Neutral Citation: Napiat Pty Ltd & Anor v Bema Gold (Australia) Pty Ltd [2012] NSWSC 326 Hearing dates: 19.03.12 Decision date: 18 April 2012 Before: Nicholas J Decision: Par 29 Catchwords: CONTRACT - agreement for sale of fixtures - breach of warranty of ownership - assessment of damages - no questions of principle Legislation Cited: Civil Procedure Act 2005 Cases Cited: Vieira v O'Shea [2012] NSWCA 21 Category: Principal judgment Parties: Napiat Pty Ltd - first plaintiff Trans Pacific Mining Pty Ltd (in liquidation) ACN 107 393 948 - second plaintiff Bema Gold (Australia) Pty Ltd - first defendant Australian Securities and Investments Commission - second defendant Heli-Serv Pty Ltd - third defendant Representation: Counsel: A P Cheshire - plaintiffs No appearance - first, second defendants D Sulan - third defendant Solicitors: Gye Associates Lawyers - plaintiffs No appearance - first, second defendants Clayton Utz - third defendant File Number(s): 11/147343

Judgment 1On 19 March 2012, at the commencement of the hearing, the plaintiffs were given leave to file the further amended summons and the amended statement of claim. As a consequence, the plaintiffs' claim against the first defendant, Bema Gold (Australia) Pty Ltd (Bema) was amended to a claim for damages and interest for breach of a contract made on 15 December 2005 for the sale and purchase of various assets located at Moorabbin Airport, Victoria. Another consequence of the amendment was that the plaintiffs no longer maintained their claims against the second defendant (ASIC) and the third defendant (Heli-Serv) as pleaded in the statement of claim filed 6 September 2011. 2There was no appearance by or on behalf of Bema at the hearing of these proceedings. However, I was satisfied from correspondence between 12 and 15 March 2012 between the plaintiffs' solicitors and Mr Rod Salfinger, a director of Bema, that Bema was well aware that the hearing would proceed as fixed. I also took into account the court record of numerous pre-trial directions and orders made between 16 May 2011 and 31 January 2012, and the history of Bema's non-compliance with them. These considerations supported the conclusion that Bema chose not to appear in the knowledge that the case would proceed in its absence. In my opinion, with regard to the requirements of s 56 Civil Procedure Act 2005, it was in the interests of justice overall that the claim under the amended statement of claim should be heard and determined without delay. 3The first plaintiff is a creditor of the second plaintiff (TPM) pursuant to an unpaid judgment. In summary, the plaintiffs claim that on or about 15 December 2005 Bema agreed to sell to TPM buildings and fixtures located at Moorabbin Airport, which included an aircraft hangar and shed, office buildings, a departure lounge, a steel garage and air conditioning units in the office (the assets). It is alleged that, in breach of warranties as to ownership and power of disposal, Bema had no ownership of the assets and was incapable of performing the contract. Accordingly, the plaintiffs claim damages for loss of the bargain.