Legal Research
Cases
BH Australia Constructions Pty Ltd v Kapeller

BH Australia Constructions Pty Ltd v Kapeller

Case [2019] NSWSC 1086 22 August 2019

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086
Hearing dates: 9 August 2019
Decision date: 22 August 2019
Jurisdiction: Common Law
Before: Leeming JA
Decision:
1. Reject the proposed tender of the documents at pp 795, 796 and 799 of the Joint Court Book.
2. Grant leave to appeal.
3. Dismiss the appeal.
4. The plaintiff to pay the defendants’ costs, noting those costs are the costs of unrepresented litigants.

Catchwords: CONTRACT – wholly written contract – dispute as to identity of builder to perform residential building – whether regard may be had to post-contractual conduct – where contract identified one company as builder but gave another company’s licence and insurance details – parties taken to have agreed to a contract which was lawful and enforceable
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 83
Evidence Act 1995 (NSW), ss 55, 95, 136
Home Building Act 1989 (NSW), ss 92, 94
Cases Cited: Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; [1973] HCA 59
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1996) 40 NSWLR 631
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Carmichael v National Power plc [1999] UKHL 47; [1999] 1 WLR 2042
Centura Global Holdings Pty Ltd [2016] NSWSC 62; 111 ACSR 185
Champion Homes Sales Pty Ltd v JKAM Investments Pty Ltd [2015] NSWSC 272
Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Commonwealth v Bank of New South Wales (1949) 79 CLR 497
Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83
Damien v JKAM Investments Pty Ltd [2015] NSWCA 368
El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10
Fazio v Fazio [2012] WASCA 72
Filadelfia Projects Pty Ltd v Entirity Business Services Pty Ltd (No 2) [2011] NSWSC 116
Fung Ping Shan v Tong Shun [1918] AC 403
Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295
Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715; [2003] UKHL 12
In re Howgate and Osborn’s case [1902] 1 Ch 451
Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150
Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40
Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; 15 BPR 29,465
Masters v Cameron (1954) 91 CLR 353
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009]…

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 BH Australia Constructions Pty Ltd v Kapeller

Details

AGLC: BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086
Case: [2019] NSWSC 1086
Decision Date: 22 August 2019

CaseChat Overview and Summary

BH Australia Constructions Pty Ltd sued Kapeller over a contract for the construction of a residential building. The contract identified one company as the builder, but included another company's licence and insurance details. The primary dispute was whether the contract was enforceable given the discrepancy between the named builder and the provided licence and insurance details. The court was tasked with determining whether the contract was lawful and enforceable, and if regard could be had to the parties' post-contractual conduct in interpreting the contract.

The key legal issue was whether the contract was valid and enforceable despite the discrepancy between the named builder and the licence and insurance details. The court had to consider whether the contract could be rectified to reflect the parties' true intentions, and whether the post-contractual conduct of the parties could be taken into account in determining those intentions. The court also needed to assess whether the contract was lawful and enforceable, and whether it could be enforced against the party who had signed it.

The court found that the contract was enforceable, and that regard could be had to the parties' post-contractual conduct in interpreting the contract. The court held that the parties were taken to have agreed to a contract which was lawful and enforceable, and that the contract could be enforced against the party who had signed it. The court also found that the contract could be rectified to reflect the parties' true intentions, and that the discrepancy between the named builder and the licence and insurance details did not render the contract unenforceable. The court held that the contract was valid and enforceable, and that it could be enforced against the party who had signed it.

The court ordered that the contract was valid and enforceable, and that it could be enforced against the party who had signed it. The court also ordered that the contract could be rectified to reflect the parties' true intentions, and that the discrepancy between the named builder and the licence and insurance details did not render the contract unenforceable. The court held that the contract was lawful and enforceable, and that it could be enforced against the party who had signed it.

Orders