[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.]
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JUDGMENT
THE COURT: On 27 October 2023, this Court made the following orders in the principal proceedings: Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 at [186]:
"(1) Appeal allowed.
(2) Set aside orders 1 and 2 of Stevenson J dated 28 February 2023 and all orders dated 8 March 2023 and in lieu thereof order:
(a) The Amended Commercial List Statement filed 19 August 2021 is dismissed.
(b) First respondent to pay the appellants' costs of the Amended Commercial List Statement.
(c) The Commercial List Cross-claim Statement filed 15 November 2022 remitted to the Equity Division to deal with damages, if any, to which the first appellant is entitled.
(d) Costs of the cross-appeal to be costs in the cause of the remitted hearing.
(3) First respondent to pay the appellants' costs of the appeal."
In what follows, familiarity with the principal judgment is assumed.
On 2 November 2023, a notice of motion was filed by the respondent, Alamdo Holdings Pty Ltd ("Alamdo") pursuant to rr 36.16(3A) and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") seeking the following orders:
"1 Pursuant to either or both of rr 36.16(3A) and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), the orders entered by the Court on 27 October 2023 be varied by deleting orders 1 to 3 and, in lieu thereof, entering the following orders:
'(1) Appeal allowed in part.
(2) Set aside orders 1 and 2 of Stevenson J dated 28 February 2023 and all orders dated 8 March 2023 and in lieu thereof order:
(a) Judgment be entered for the first respondent in the sum of $189,279.87.
(b) The Cross-Summons filed 15 November 2022 be remitted to the Equity Division to deal with damages, if any, to which the first appellant is entitled.
(c) Costs of the Cross-Summons to be costs in the cause of the remitted hearing.
(3) The parties each be granted liberty to file further written submissions as to the appropriate orders for costs of the Summons below, and the costs of the appeal, as follows:
(a) The appellants are to file and serve written submissions (not to exceed 3 pages) within 7 days.
(b) The first respondent is to file and served written submissions (not to exceed 3 pages) within 14 days.
(c) The appellants are to file and serve written submissions in reply (not to exceed 1 page) within 21 days.
(4) Subject to any order to the contrary, the questions of costs the subject of order 3 be dealt with on the papers.'
2 The appellants pay the first respondent's costs of this notice of motion."
Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 286 | Case summary | Zoe
On 9 November 2023, as the appellant, Croc's Franchising Pty Ltd ("Croc's"), had not responded to enquiries made by Alamdo about whether Croc's consented to the making of those orders, the Court gave the following directions:
"1. The appellants are to notify the Court and the parties by 4pm on 17 November 2023 if they consent to the orders sought in the Notice of Motion filed on 2 November 2023 (NOM).
2. In the event that the appellants do not consent to the orders sought in the NOM:
a. By 4pm on 20 November 2023 the appellants are to file and serve submissions not exceeding 3 pages about the orders sought.
b. By 4pm on 24 November 2023 the first respondent is to file and serve submissions in reply not exceeding 3 pages about the orders sought.
3. The Court will, in the absence of good reasons being shown, deal with the NOM on the papers."
Croc's did not consent to the making of any of the proposed orders. Submissions were filed by Croc's on 20 November 2023 and Alamdo on 24 November 2023.
Croc's conceded that, in accordance with the reasons of the Court, they remained liable for $138,629 in rental arrears and $22,817.76 in outgoings (together with interest) in respect of the year ended 30 June 2020. Croc's submitted that, nonetheless, judgment should not be entered in favour of Alamdo for those amounts, plus interest, because Croc's has an as yet undetermined cross-claim which has been remitted to the Equity Division and may be entitled to a set-off.
Alamdo submitted that judgment for this sum was entered below as part of the total judgment and that the orders made by this Court setting aside the orders made in Alamdo's favour in full were inconsistent with the reasons the Court gave to that extent. This aspect of Alamdo's claim below was a claim in debt for payment of outstanding rental arrears and outgoings accruing during the term of the lease. The judgment entered in the Court below included the amount of that debt.
Alamdo's submission should be accepted. By reason of rr 36.16(3A) and 36.17 of the UCPR, it is clear that jurisdiction exists to give effect to Croc's concession that in accordance with the reasons of the Court, Croc's remained liable for $138,629 in rental arrears and $22,817.76 in outgoings (together with interest). Orders should be made correctly reflecting the reasons of the Court.
As to Croc's' submission that orders should not be made pending determination of the cross-claim, no defence of set off was pleaded or conducted by Croc's in the proceedings below. No set-off defence can now be raised by the appellants. Further, no ground of appeal was raised in this Court raising any entitlement to a set-off. The fact that the cross-claim has now been remitted to the Equity Division does not provide a basis to disturb that component of the judgment correctly entered in favour of Alamdo by the Court below.
It follows that the judgment entered for Alamdo in the Court below should not be set aside in full but, rather, varied pursuant to rr 36.16(3A) and 36.17 of the UCPR to reduce the judgment sum to $189,279.87, comprising outstanding rental arrears and outgoings, together with pre-judgment interest calculated to the date of the orders this Court made on 27 October 2023. That is the sum in proposed order 2(a) in prayer 1 of Alamdo's motion. Croc's concede that they remain liable for $138,629 in rental arrears and $22,817.76 but do not, in their submissions, address interest. Alamdo is clearly entitled to pre-judgment interest. That brings the total to which Alamdo is entitled to the sum of $189,279.87 identified in the Notice of Motion. The orders proposed by Alamdo should be made. Out of an abundance of caution, an order should also be made that the Amended Commercial List Statement filed 19 August 2021 is otherwise dismissed.
The other subject matter of Alamdo's motion was an opportunity to make brief submissions about the costs of the summons below and the costs of the appeal, having regard to the amended orders about the principal sum. Alamdo's submissions should be accepted. The parties should be given a brief opportunity to make submissions concerning the costs of the summons below and the appeal. Those submissions will be dealt with on the papers.
Finally, Croc's in its submissions made an informal application for the release of security it had been ordered by Brereton JA to pay into court as a condition of the stay of the judgment below. The amounts comprised:
1. The sum of $184,190.14, reflecting the component of the judgment entered in the proceeding below comprising outstanding rental arrears and outgoings (including interest up until the hearing before Brereton JA): see order 1(e) of Croc's Franchising Pty Ltd v Alamdo Holdings Pty Limited [2023] NSWCA 85 at [26]; and
2. A sum of $110,000 as security for Alamdo's costs of the appeal.
Given that Alamdo is now entitled to judgment in the sum to $189,279.87, prima facie it is entitled to have paid out to it the sum of $184,190.14 paid into Court, together with any accrued interest. Whether that order should be made now should be the subject of brief written submissions. Whether the sum of $110,000 paid as security for Alamdo's costs of the appeal should be paid out, and to whom, can also be the subject of the brief additional submissions the parties will be permitted to make.
As Alamdo has been successful in having these orders made, the costs of the motion should be paid by Croc's.
For the foregoing reasons the Court makes the following orders:
1. Pursuant to rr 36.16(3A) and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), the orders entered by the Court on 27 October 2023 are varied by deleting orders 1 to 3 and, in lieu thereof, entering the following orders:
"(1) Appeal allowed in part.
(2) Set aside orders 1 and 2 of Stevenson J dated 28 February 2023 and all orders dated 8 March 2023 and in lieu thereof order:
(a) Judgment be entered for the first respondent in the sum of $189,279.87.
(b) The Amended Commercial List Statement filed 19 August 2021 is otherwise dismissed.
(c) The Cross-Summons filed 15 November 2022 be remitted to the Equity Division to deal with damages, if any, to which the first appellant is entitled.
(d) Costs of the Cross-Summons to be costs in the cause of the remitted hearing.
(3) The parties each be granted liberty to file further written submissions as to the appropriate orders for costs of the Summons below, costs of the appeal, and payment out or release of amounts paid into Court including the security for Alamdo's costs of the appeal as follows:
(a) The appellants are to file and serve written submissions (not to exceed 3 pages) by 4pm Tuesday 5 December 2023.
(b) The first respondent is to file and serve written submissions (not to exceed 3 pages) by Friday 8 December 2023.
(c) The appellants are to file and serve written submissions in reply (not to exceed 1 page) by Monday 11 December 2023.
(4) The questions the subject of order 3 be dealt with on the papers."
1. The appellants are to pay the first respondent's costs of this notice of motion.
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Decision last updated: 29 November 2023