Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd - [2009] SASC 384

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BADGE CONSTRUCTIONS (SA) PTY LTD v RULE CHAMBERS PTY LTD
[2009] SASC 384
Reasons of Judge Withers a Master of the Supreme Court
16 December 2009
PROCEDURE
Application to set aside Notice of Withdrawal of Offer.
Supreme Court Rules 2006 r 12, r 117, referred to.
Rule Chambers Pty Ltd v Badge Constructions (SA) Pty Ltd (16 March 2009, unreported, Full Court [2009] SASC 70); Taylor & Ors v Johnson (1982-1983) 151 CLR 422; Alghussein Establishment v Eton College [1988] 1 WLR 587; Cheall v Association of Professional Executive Clerical and Computer Staff [1983] AC 180; Rogers v The Queen (1994) 181 CLR 251; Walton v Gardiner (1992-1993) 177 CLR 378; State Bank of South Australia v Smoothdale No 2 Limited & Anor (1995) 184 LSJS 254; Australian Consolidated Investments Limited & Anor v England (1995) 183 LSJS 408, considered.

BADGE CONSTRUCTIONS (SA) PTY LTD v RULE CHAMBERS PTY LTD
[2009] SASC 384

JUDGE WITHERS. By an interlocutory application filed on 24 April 2009 – FDN 68 – the plaintiff sought the following orders:
1.That the Notice of Withdrawal of Offer filed by the Defendant on 7 May 2008 be set aside.
2.In the alternative to (1), that the Notice of Withdrawal of Offer filed by the Defendant on 7 May 2008 be struck out.
3.That judgment be entered for the Plaintiff in the sum of $300,000.
4.That the Defendant pay the Plaintiff’s costs of the action from 8 July 2008 to date, (excluding the costs of the appeal to the Full Court).
5.In the alternative to (4) that the Defendant’s solicitors pay the Plaintiff’s costs of the action from 8 July 2008 to date, (excluding the costs of the appeal to the Full Court).
6.That the Defendant pay interest on the judgment sum from 8 July 2008 at the rate prescribed by the Supreme Court Rules.
7.That the Plaintiff be granted an extension of time in which to bring this application.
The application was made pursuant to r 12, r 13 and r 117 of the Supreme Court Rules 2006.
The history of this matter relevant to this application is set out in the judgment of White J delivered as the judgment of the Full Court in Rule Chambers Pty Ltd v Badge Constructions (SA) Pty Ltd (16 March 2009, unreported, [2009] SASC 70). In his reasons for judgment, White J at paragraphs [4] to [8] noted:
[4] The respondent (“Badge”) instituted proceedings in this Court against the appellant (“Rule Chambers”). It claimed damages and other relief in respect of alleged breaches of a contract under which it had performed building work at the property of Rule Chambers at 19-21 King William Street, Adelaide. Rule Chambers denied liability and filed a counterclaim seeking damages in respect of the repudiation of the contract by Badge which it alleged.
[5] On 5 November 2007, Rule Chambers filed in the Court an offer to consent to judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 384
Decision Date: 16 December 2009

CaseChat Overview and Summary

In the case of Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd, the plaintiff sought to establish the admissibility of certain evidence regarding an alleged withdrawal of an offer that had been filed with the court. The defendant opposed this application, arguing that the evidence was inadmissible. The central legal issue before the court was whether the plaintiff could rely on the evidence of the defendant’s witness, Mr. Bertram, concerning the alleged withdrawal of an offer. The court had to determine if Mr. Bertram's testimony was credible and whether it should be admitted as evidence.

The court closely examined Mr. Bertram's conduct during the cross-examination, noting his initial evasiveness and reluctance to provide direct answers. However, when questioned about a specific conversation on 5 May 2008, Mr. Bertram was consistent and clear in stating that he had informed Mr. Whiting that the offer had been withdrawn. The court found Mr. Bertram's assertion credible and accepted that he had indeed communicated the withdrawal of the offer to Mr. Whiting. The court also noted that Mr. Bertram had instructed his solicitors to withdraw the offer on 14 December 2007 and subsequently verified this with his solicitors on 5 May 2008. The court concluded that Mr. Bertram's evidence was reliable and admissible.

Given the acceptance of Mr. Bertram's evidence, the court ruled in favour of the plaintiff, allowing the evidence concerning the withdrawal of the offer to be admitted. The final orders of the court would likely incorporate this ruling, permitting the plaintiff to rely on this evidence in their case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A consequence of all this was the plaintiff’s interlocutory application – FDN 68.The Evidence Paragraphs 1 and 2 of the plaintiff’s application were argued before me on 3 November 2009. At that time the plaintiff read in support of its application the affidavits of Nicholas Anderson filed 21 July 2008 – FDN 52, 14 August 2008 – FDN 55, and 8 July 2009 – FDN 75. The plaintiff also relied on the affidavits of Jim Whiting filed 14 August 2008 – FDN 56, and 7 July 2009 – FDN 74. Additionally the plaintiff relied on the affidavit of Dale Fleming filed 14 August 2008 – FDN 57. The defendant in opposition to the application relied on the affidavit of Ms Hynes filed 29 July 2008 – FDN 53, and the affidavits of David Bertram filed 30 July 2008 – FDN 54, 27 August 2008 – FDN 58, and 16 July 2009 – FDN 79. Following an argument permission was given to the plaintiff to cross-examine Mr Bertram on his affidavits FDN 54, FDN 58 and FDN 79. That cross-examination duly took place on 3 November 2009. In giving his evidence Mr Bertram on occasions tended to avoid answering a question directly but would rather state what he perceived the defendant’s position to be on a particular issue. He was at times non-responsive to the question. On one occasion he sought to have explained to him how counsel’s question “fitted in” and what “counsel was trying to get at” by asking the question – see transcript pages 23 and 24. He did not impress as a witness who simply answered in a straightforward and direct manner the questions put to him. Many of the questions could have been answered with a simple “yes” or “no”. However, in relation to a critical conversation that is alleged to have occurred on 5 May 2008 Mr Bertram was on this occasion quite open, direct, and consistent with his answers. He asserted that he had told Mr Whiting on that occasion that the offer to which Mr Whiting referred that had earlier been filed in November 2007 had been withdrawn. It was put to him that his words had been less certain in the sense that he said “I think that offer has been withdrawn”. Mr Bertram adhered firmly to his assertion that he had said to Mr Whiting that the offer had been withdrawn. He also denied that he had said to Mr Whiting “he would check” the status of the filed offer. He was unmoved on that – see transcript pages 10 to 11. I accept that he said to Mr Whiting that the offer had been withdrawn. It was also clear from Mr Bertram’s evidence that he had instructed his solicitors on 14 December 2007 to withdraw the notice of offer that had earlier been filed. He had assumed that to have been done. When Mr Whiting put to him on 5 May 2008 that the offer was still on file, Mr Bertram thereafter made contact with his solicitor that day to check with her that the offer had been withdrawn in accordance with instructions. His solicitor asserts that the telephone contact occurred on 6 May 2008 – see Hynes’ affidavit FDN 53, paragraph 10. When asked for detail of the conversation with his solicitor he steadfastly declined to give same but rather did say on one occasion that he had made reference to their PI insurance. Following this conversation his solicitor confirmed with him on 7 May 2008 that another notice of withdrawal had been filed at the Court that day.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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