Jacques v Forte Enterprises Pty Ltd (No 2) [2012] NSWSC 1314

Supreme Court New South Wales

Medium Neutral Citation: Jacques v Forte Enterprises Pty Ltd (No 2) [2012] NSWSC 1314 Hearing dates: 12 October 2012 Decision date: 12 October 2012 Jurisdiction: Equity Division Before: Rein J Decision: 1. Leave granted to the plaintiff to reopen and make further submissions on calculation of damages in relation to deduction for profit from the unit sale. 2. No variation made to calculation of damages in the principal judgment. 3. Judgment not entered against the second defendant with no orders as to costs as between the plaintiff and second defendant. 4. Order that the first and third defendants pay the plaintiff's costs on the ordinary basis, those costs to be subject to set-off against any order for costs previously or otherwise made in these proceedings in favour of the first and third defendant. 5. Stay of judgment against first and third defendant granted to 23 November 2012. Catchwords: PROCEDURE - judgments and orders - application to reopen - where counsel understood that there was a concession on calculation of an item of damages - interests of justice are better served by allowing the application

DAMAGES - measure of damages for breach of fiduciary duty - deduction from damages of benefits previously agreed upon between plaintiff and defendant

PROCEDURE - costs - general rule costs follow the event - where plaintiff obtains considerably less than he claimed but r 42.34 does not apply - where plaintiff has not failed on some separate issue - no basis for reduction of costs awarded Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Australian Securities and Investments Commission v Rich [2006] NSWSC 826 Blatch v Archer (1774) 98 ER 769 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 39 ASCR 20 Jacques v Forte Enterprises Pty Ltd [2012] NSWSC 1241 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Morley v Australian Securities and Investments Commission [2010] NSWCA 331 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Smith v New South Wales Bar Association (1992) 176 CLR 256 Urban Transit of Authority of NSW v Nweiser (1992) 28 NSWLR 471 Texts Cited: N C Seddon and M P Ellinghaus, Cheshire & Fifoot's Law of Contract, 9th Aust ed (2008), LexisNexis Butterworths Category: Consequential orders Parties: Phillip Jacques (Plaintiff)