[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.]
[2]
JUDGMENT
THE COURT: By judgment delivered on 22 February 2022 in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25, this Court dismissed grounds 1-8 of an appeal heard on 2 February 2022. The appellants succeeded in relation to one aspect of ground 9, on a point which seemed not to have been advanced before the primary judge, and requested in that event that there be an opportunity to be heard on the orders which should be made. This Court acceded to that request. No orders as to costs were made, although some preliminary views were expressed at [103] as to costs at first instance and in this Court.
Accordingly, this Court made the following orders on 22 February 2022:
(1) Appeal dismissed in respect of grounds 1-8.
(2) Direct the parties to file and serve within 14 days of today orders by consent or alternatively the orders for which they contend and submissions not exceeding four pages in support thereof, with further submissions to be filed and served within 21 days of today not exceeding two pages in length in response, with a view to this Court making orders for further steps to be taken in this appeal.
On 7 March 2023 the parties jointly requested an extension of time to 22 March 2023, and the Court acceded to that request.
On 22 March 2023, the parties advised that they had resolved the question of costs, on the basis that the costs order at first instance be vacated, and there be no order as to the costs at first instance or on appeal, with the intention that the plaintiff and the first, second, fifth and sixth defendants pay their own costs at first instance, and the parties to the appeal pay their own costs of the appeal, noting that the plaintiff's receipt of the sum of $350,000 in settlement of her claim against the third defendant was in full and final satisfaction of any entitlement she had or will have in respect of costs as against the first, second, fifth and sixth defendants in the Court below or in this Court.
Orders in the terms to which the parties agreed were made, the Court proceeding on the basis that, all parties being represented, any conflict as flagged in [33] had been addressed and resolved (for example, through Ms Bale having obtained independent legal advice). The outstanding issues concern the return of title to the property, which was ordered by the primary judge but stayed pending appeal, and which this Court indicated should take place as soon as possible, and the determination of allowances being paid for expenses incurred and income received. Accordingly, and once again by consent, the Court made further orders giving the parties 14 days to supply the orders for which they contended and for submissions not exceeding four pages in support, with rights of reply 7 days thereafter. Those orders reflected the regime ordered by the Court a month earlier.
On 5 April 2023, the parties jointly applied for a yet further extension of the regime, extending the time for compliance with the order to provide the orders they sought and the submissions and materials in support until 14 April 2023, with a reply by 5 May 2023. The Court acceded to this request, but conveyed to the parties that if any further extension were sought, it could be expected that an explanation on affidavit would be required.
There was substantial compliance with the extended and re-extended timetable, and it has become common ground that the rental income owed to the respondent is $482,481.43. However, there remain a series of disputes, both procedural and substantive.
Both sides complain about non-compliance by the other side. The appellants complain about an affidavit served by the respondent. The respondent complains about the lateness of the appellants' submissions and flagged a request for a further right of reply. Both sides have served expert reports addressing the calculation of interest. The appellants seek to be heard orally unless the appellants' affidavit is rejected in its entirety; the respondent opposes this.
Turning to the substance of the remaining issue, there are a series of disputes in the calculation of amounts attributable. They are too numerous to list exhaustively, but they extend to the Suncorp loan, stamp duty, management fees, expenses, land tax, rates, water rates and other expenses. The largest dispute concerns interest, which the appellants calculate at $1,204,600.58. This is many hundreds of thousands more than has been calculated by the respondent.
It is also common ground that the existing stay of the orders of the primary judge should be lifted, but there is a dispute as to how that should occur. The appellants seek orders to the effect that the obligation to transfer the property to Ms Bale need not occur until the later of 28 days or the making of a payment. The respondent says that the stay should be lifted, the property returned to her ownership at law, and then the allowances should be determined.
The orders proposed by the appellants depart from the regime contemplated by the primary judge: see Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820. There is no reason for the limited interference by this Court with the exercise of discretion of the primary judge to cause any departure from the sequence of orders to restore title to the land. The orders made by this Court will adhere to this aspect of the orders made at first instance, by removing the stay, with the effect that the property is to be transferred to Ms Bale within 28 days.
The exchange of submissions which has occurred, the number and nature of disputes which the parties have raised, and the application for an oral hearing, makes the balance of this proceeding unsuitable to be determined by the Court constituted by three Judges of Appeal. As much was flagged in [101] of the Court's principal judgment, which was as follows:
Further, my present view is that it will be faster, and cheaper, if the relatively straightforward accounting exercise, which the primary judge directed to be determined by a referee, is conducted by a Judge of Appeal who is apprised of the issues in this litigation, to whom there should also be a general grant of liberty to apply. A similar course was taken in Doyle v Commissioner of Police [2020] NSWCA 11 at [84]-[93]. I presently favour making directions for the appellants to quantify the matters identified in the orders made at first instance and to file and serve the materials which in their submission sustain that calculation, for Ms Bale to indicate whether she agrees or disagrees and to the extent she disagrees, to adduce the materials on which she relies, and to give the appellants an opportunity to be heard in reply.
The orders below will permit that to occur, which is the course favoured by the appellants. There will be a further hearing before a single judge, sitting for this purpose as a judge in the Equity Division. That hearing will be arranged at a time in the order of six to eight weeks in the future, so that it will be clear that the property has been transferred.
The Court makes the following orders:
Discharge the existing stay of the orders made on 23 June 2022.
Note that the effect of order 1 above is that Kimberley Developments is to transfer unencumbered title to the Forest Lodge Property to Ms Bale within 28 days of today.
Set aside orders 9, 12 and 17 made on 23 June 2022 insofar as those orders were directed to a Court appointed referee, and in lieu thereof remit the balance of the proceeding to the Equity Division, with a view that there will be a further hearing of the issues raised on the submissions exchanged by the parties before a single judge who is a member of this Court, at a date to be fixed but in the expectation that it will be in some 6-8 weeks hence.
Grant liberty to the parties to apply to the judge before whom the balance of the proceeding is to be heard on three clear working days' notice.
[3]
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Decision last updated: 16 May 2023