Despot v Registrar-General of NSW [2013] NSWCA 313

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Despot v Registrar-General of NSW [2013] NSWCA 313 Hearing dates: 19 and 20 March 2013; Written submissions 28 March 2013 Decision date: 20 September 2013 Before: Meagher JA at [1]; Ward JA at [115]; Bergin CJ in Eq at [116] Decision: (1) The application of the first respondent (Mr Maalouf) for leave to file a cross-appeal dismissed. (2) Appeal allowed in part. (3) Set aside order 2 of the Court below made on 15 April 2011, but only to the extent that it applies to the eighth defendant (Sky Constructions). (4) Judgment for the appellant against Sky Constructions in the sum of $788,375.35, including pre-judgment interest, that judgment to take effect on 15 April 2011. (5) Judgment for the appellant against Stelli for the sum of $91,086 plus pre-judgment interest of $21,746, that judgment to take effect on 15 April 2011. (6) Appeal otherwise dismissed. (7) The second and seventh respondents pay one-third of the costs of the appellant of the appeal in so far as they relate to them. (8) The appellant pay the costs of the third, fifth and sixth respondents of the appeal. (9) The appellant pay the costs of the fourth respondent (St George) of the appeal including its costs of his application to amend the Notice of Appeal to seek relief against it. (10) Grant leave to the parties to lodge written submissions with respect to the calculation of interest in Order 5 in the event that either party challenges the correctness of that calculation. Such submissions to be lodged within seven days of the date 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: PRINCIPAL AND AGENT - power of attorney - power executed by home owner in favour of principal of building company undertaking renovation work - separate security granted to builder to secure moneys owed for renovations - whether power of attorney irrevocable because provided for purpose of securing repayment of moneys due to builder - whether donee of power owed fiduciary duties to donor