Ng v Filmlock Pty Ltd [2014] NSWCA 389

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ng v Filmlock Pty Ltd [2014] NSWCA 389 Hearing dates: 25 August 2014 Date of orders: 13 November 2014 Decision date: 13 November 2014 Before: Emmett JA at [1]; Gleeson JA at [43]; Tobias AJA at [60] Decision: (1) The appeal be allowed.

(2) The orders made by Pembroke J on 12 August 2013 be set aside.

(3) The matter be remitted to Pembroke J for the purpose of entertaining any application that a party may wish to make to adduce evidence as to the value of the land the subject of the deed of option entered into on 21 November 2005.

(4) There be no order as to the costs of the appeal.

(5) The costs of the proceedings at first instance be determined by Pembroke J. Catchwords: CONTRACT – contract for sale of land – termination for breach – measure of the vendors' loss – whether the primary judge erred in finding that the measure of loss was the difference between the price payable under the contract and the net amount attributable to the land under a resale contract 13 months later – whether the prima facie rule governing damages for breach of a contract for sale of land should give way where there was no "available market" at the time of breach – no evidence before the primary judge as to the market value of the land at the date of breach Legislation Cited: Evidence Act 1995 (NSW), s 144 Cases Cited: Carpenter v McGrath (1996) 40 NSWLR 39 Goodridge v Macquarie Bank Ltd [2010] FCA 67; 265 ALR 170 Hooper v Oates [2014] Ch 287 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 Laird v Pim (1841) 151 ER 852 Vitek v Estate Homes Pty Ltd [2010] NSWSC 237 Texts Cited: Andrews, Clarke, Tettenborn and Virgo, Contractual Duties: Performance, Breach, Termination and Remedies (Sweet & Maxwell, 2011) Category: Principal judgment Parties: Samuel Ng (First Appellant) Nissi Investments Pty Ltd (ACN 112 933 436) (Second Appellant) Filmlock Pty Ltd (ACN 054 610 052) (First Respondent) Jakesam Developments Pty Ltd (In Liquidation) (ACN 061 154 729) (Second Respondent) Pearse Property Group Pty Ltd (ACN 086 946 849) (Third Respondent) JGT Investments Pty Ltd (In Liquidation) (ACN 111 076 398) (Fourth Respondent) Soni Tanwidjaja (Fifth Respondent) Representation: Counsel: Mr BA Coles QC with Mr OR Jones (Appellants) Mr ID Faulkner SC with Ms L Chan (Respondents)