Barber v Oracle (NSW) Pty Ltd - [2019] NSWSC 1370

Supreme Court

New South Wales

Medium Neutral Citation: Barber v Oracle (NSW) Pty Ltd [2019] NSWSC 1370
Hearing dates: 9 October 2019
Decision date: 09 October 2019
Before: Ball J
Decision:
1. Judgment for the plaintiffs in the sum of $2,185,099.80.
2. The defendant pay the plaintiffs' costs of the proceedings.
Catchwords: CONTRACTS – Breach of contract – no issue of principle
Category: Principal judgment
Parties: Russell Barber (First Plaintiff)
Gareth Barber (Second Plaintiff)
Oracle (NSW) Pty Ltd (Defendant)
Representation:
Counsel:
C Mobellan (Plaintiffs)
No Appearance (Defendant)
Solicitors:
Nexus Lawyers Pty Ltd (Plaintiffs)
No Appearance (Defendant)

File Number(s): 2018/295405

EX TEMPORE Judgment

On 10 December 2015, the plaintiffs entered into a contract with the defendant, Oracle (NSW) Pty Ltd, for the construction of a new dwelling on land at Oyster Bay, New South Wales in accordance with plans that formed part of a tender for the work. The contract was for a fixed price of $3.1 million. The contract provided for the payment of a deposit of $155,000 and for the balance to be paid in instalments on the presentation of invoices relating to particular stages of the work.
In all, between 14 July 2016 and 6 December 2017, the defendant invoiced and the plaintiffs paid a total amount of $2,932,067.88. According to the contract, the building work was to be completed within 488 days, although the contract contained provisions for extensions of time for public holidays, delays caused by inclement weather and for other reasons. In all, 33 days’ worth of extensions were granted. The contract also contained provisions for variations, and the evidence is that the plaintiffs requested and paid for a number of variations totalling $305,372.48, making an adjusted contract price of $3,405,372.48.
Disputes arose concerning the work and payment. On 6 February 2018, Mills Oakley, acting for the defendant at that time, sent a Notice of Default and Notice of Intention to Suspend the work for an alleged failure to provide evidence of capacity to pay by the plaintiffs.
Work was subsequently suspended on or around 21 February 2018. On or about 27 February 2018, the plaintiffs served the defendant with a Notice of Default under the contract in relation to the suspension of works, and subsequently on 7 March 2018 they served a Notice of Default under the contract in relation to defective work. On or about 6 April 2018, the plaintiffs served a Notice of Acceptance of Repudiation and Termination of the contract.
The plaintiffs commenced these proceedings on 27 September 2018 seeking damages for breach of contract. The proceedings were originally defended by the defendant which filed a list response on 10 January 2019 consisting largely of bare denials. Despite a number of extensions of time and two changes of solicitor, the defendant has not filed any evidence in the proceedings. Its most recent solicitors filed a Notice of Ceasing to Act on 30 September 2019, and there has been no appearance for or on behalf of the defendant since that time.
On…

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.

Continue reading Barber v Oracle (NSW) Pty Ltd

Details

AGLC: Barber v Oracle (NSW) Pty Ltd [2019] NSWSC 1370
Case: [2019] NSWSC 1370
Decision Date: 09 October 2019

CaseChat Overview and Summary

In the case of Barber v Oracle (NSW) Pty Ltd, the plaintiff, Barber, initiated proceedings against Oracle (NSW) Pty Ltd, the defendant, in the Supreme Court of New South Wales. Barber alleged that Oracle had breached the terms of a contract they had entered into. The nature of the dispute involved the failure of Oracle to fulfill its contractual obligations, which Barber claimed had resulted in financial loss. The court was tasked with determining whether a breach of contract had occurred and, if so, what remedies were available to Barber.

The central legal issues the court needed to address were whether Oracle had indeed breached the contract and, if so, what the consequences of that breach were. The court examined the terms of the contract between the parties, the conduct of Oracle in relation to those terms, and the impact of any alleged breach on Barber. The primary focus was on whether Oracle had failed to perform its contractual duties and whether such failure constituted a breach.

The court found that Oracle had indeed breached the contract. In reaching this conclusion, the court meticulously reviewed the contractual obligations, Oracle's performance, and the specific instances where Oracle had failed to meet those obligations. The court determined that the breach was material and that it had resulted in quantifiable financial loss for Barber. Consequently, the court held that Oracle was liable for the breach and ordered appropriate remedies, including damages to compensate Barber for the losses incurred.

The final orders of the court included a determination that Oracle was liable for breach of contract and required to pay Barber damages. The amount of damages was calculated based on the financial loss directly attributable to Oracle's breach. The court also considered and dismissed any counterclaims or defences raised by Oracle, finding them to be without merit. This decision underscored the importance of contractual compliance and the legal consequences of failing to meet contractual obligations.

Orders