Recent Cases

Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 (22 February 2023) (Leeming and Kirk JJA, Griffiths AJA)


APPEAL – challenge to factual findings – transfer of land – where defendants contended that consideration provided by $302,000 in banknotes – no documentary records available – whether primary judge erred in finding defendants’ case not established

PLEADINGS – vendor executed joint venture agreement with sole director and shareholder of purchaser – no shares issued to purchaser in accordance with agreement – plaintiff sued for breach of contract – no challenge to finding by primary judge that joint venture agreement not contractual – primary judge found that purchaser represented to vendor that the land would be developed in accordance with joint venture agreement – no case based on misrepresentation pleaded – whether open to primary judge to make findings based on unpleaded case – unpleaded case was opened and cross-examined upon without objection – parties to be taken to have litigated unpleaded case

EQUITY – unconscionable conduct – special disadvantage – whether primary judge erred in finding defendants unconscientiously exploited special disadvantage known to them – orders in nature of rescission – need to bring to account payment made by one defendant whose claim was compromised prior to trial