This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Bauskis v Liew
Medium Neutral Citation:
[2013] NSWCA 297
Hearing Date(s):
7 August 2013
Decision Date:
05 September 2013
Before:
Beazley P at [1]; Barrett JA at [2]; Gleeson JA at [8]
Decision:
1. Appeal dismissed. 2. Appellants to pay the respondent's costs.
[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.]
Catchwords:
APPEAL AND NEW TRIAL - appeal - practice and procedure - self-represented litigant - procedural fairness - whether primary judge erred in the exercise of his discretion in rejecting evidence and refusing an adjournment application
CONTRACTS - building, engineering and related contracts - remuneration - joint venture - quantum meruit - whether party to the deed entitled to recover for services rendered
John Peter Bauskis (First appellant) Gusfact Trading Pty Ltd (Second appellant) Nicholas Kon Ming Liew (Respondent)
Representation
- Counsel:
Counsel: Dr J Walsh of Brannagh (Appellants) J W Dodd (Respondent)
- Solicitors:
Solicitors: Darroll Nelson (Appellants) Goodwyn Legal (Respondent)
File Number(s):
2012/308715
Decision Under Appeal
- Court / Tribunal:
Supreme Court
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
AGLC
Bauskis v Liew [2013] NSWCA 297
Case
[2013] NSWCA 297
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Bauskis and Liew, who were parties to a joint venture agreement. The primary judge had made orders in favour of Liew, and Bauskis appealed these orders to the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the primary judge had erred in the exercise of his discretion by rejecting certain evidence tendered by Bauskis and by refusing an application for an adjournment. Additionally, the court considered whether a party to the joint venture deed was entitled to recover remuneration for services rendered on a quantum meruit basis.
The Court of Appeal found no error in the primary judge's decisions. It held that the primary judge had acted within his discretion in rejecting the evidence, as it was not relevant to the issues before the court. The refusal of the adjournment was also upheld, as the primary judge had not been afforded sufficient notice of the application and the grounds upon which it was made. Regarding the claim for remuneration, the court determined that the terms of the joint venture deed governed the parties' entitlements, and therefore, a claim on a quantum meruit basis was not available.
The appeal was dismissed, and the appellants were ordered to pay the respondent's costs.
Orders
Orders of the court
1. Appeal dismissed.
2. Appellants to pay the respondent's costs.
[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.]