Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd (No 3) [2020] NSWSC 345

Supreme Court New South Wales

Medium Neutral Citation: Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd (No 3) [2020] NSWSC 345 Hearing dates: 25 February 2020 Date of orders: 02 April 2020 Decision date: 02 April 2020 Jurisdiction: Equity Before: Emmett AJA Decision: Refuse the plaintiff's application for additional damages under Supreme Court Act 1970 (NSW), s 68 Catchwords: CONTRACTS — Remedies — Damages — Damages after specific performance — claim for additional damages — whether actions of defendant was caused ascertainable loss or damage Legislation Cited: Supreme Court Act 1970 (NSW), s 68 Cases Cited: Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd [2019] NSWSC 1201 Category: Principal judgment Parties: Senses Northbridge Pty Ltd (Plaintiff) Sahab Holdings Pty Ltd (Defendant) Representation: Counsel: S Epstein SC with G R Rubagotti (Plaintiff) A J L Bannon SC with M R Davis (Defendant)

Solicitors: Baron + Associates (Plaintiff) Piper Alderman (Defendant) File Number(s): 2018/390352

Judgment

Introduction 1. On 11 September 2019, I published my reasons (the Principal Reasons) for concluding that the plaintiff, Senses Northbridge Pty Ltd (Senses), was entitled to orders for specific performance by the defendant, Sahab Holdings Pty Ltd (Sahab), of its obligations under an agreement for lease entered into on 10 May 2018 (the Agreement) relating to properties situated in Northbridge (the Premises). [1] Senses now claims additional damages pursuant to s 68 of the Supreme Court Act 1970 (NSW). Section 68 relevantly provides that, where the Court has power to order the specific performance of any agreement, the Court may award damages to the party injured in addition to specific performance. 2. The Agreement provided for the lodging of a development application with Willoughby Municipal Council (the Council) in respect of proposed development of the Premises by Senses. Under cl 3.4 of the Agreement, Sahab, as owner of the Premises, was required to consent to the development application. Senses presented a form of development application to Sahab on 29 November 2018. However, Sahab failed to sign the document. On 24 September 2019, I ordered that, within three business days from the date on which Senses supplemented the proposed development application so as to incorporate the views expressed by Mr Benjamin Dewhurst concerning remediation, Sahab was to deliver to Senses a signed document in the form specified in the order. Ultimately, the document was signed on 30 October 2019 by the Registrar in Equity on behalf of Sahab when Sahab failed to do so and the development application was subsequently lodged with the Council. There is no evidence as to when it was actually lodged. 3. Senses contends that, had Sahab fulfilled its contractual obligation under the Agreement, the development application would probably have been lodged on or about 30 November 2018 but it was not in fact lodged until on or after 30 October 2019, a delay of some 11 months. Senses seeks compensation for the loss that it contends may reasonably be said to have arisen naturally from the delay or that may be reasonably supposed to have been in the contemplation of the parties, when the Agreement was made, as likely to arise from the breach by Sahab that occurred. [2] 4. Sahab resists the claim by Senses on the basis that Senses has failed to establish any causal connection between the damages claimed by Senses and the undoubted delay on its part in performing its obligations under the Agreement. In addition, Sahab contends that, even if there was such a causal connection, it should not be ordered to pay damages because of the circumstances that led to its failure to perform its obligations under the Agreement. I shall deal with the latter question first.