Blackmore Design Group Pty Ltd v Mudge - [2006] NSWDC 160

CITATION: Blackmore Design Group Pty Ltd v Mudge [2006] NSWDC 160
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 November 2006

JUDGMENT DATE:
15 December 2006

JUDGMENT OF: Rein SC DCJ

DECISION: See [42].

CATCHWORDS: Claims by architect for unpaid fees - Adoption of referee’s report - Principles to be applied - Identification of contracting parties - Whether alternative claims in contract against defendants can be pursued where all defendants admit contract with one of them - Identity of contracting party issue - Defendants raise points not taken before referee and change in approach by plaintiff to calculation of claim from that contained in pleading not notified to referee

CASES CITED: Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606
Ciavarella v Balmer (1983) 153 CLR 438
Healey v Commonwealth Bank of Australia [1998] NSWSC 678
Homebush Abattoir Corporation v Bermria Pty Ltd (1991) 22 NSWLR 605
Johnson v Australian Casualty Co Ltd (1992) 7 ANZ Ins Cas 61-109
Karam v ANZ Banking Group Ltd [2003] NSWSC 866
MacMillan v Mumby [2006] NSWCA 74
Mulligan v Benton [1999] NSWCA 339
Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631
Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (unreported, NSWCA, 8/06/94, BC9405038)
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Scarf v Jardine (1882) 7 App Cas 345
Skinner & Edwards (Builders) Pty Ltd v Australian Telecommunications Corp (1992) 27 NSWLR 567
Southdown Publications Pty Ltd v ACP Magazines Pty Ltd (2003) 60 IPR 367; [2003] NSWCA 347
Super Pty Ltd v SJP Formworks (Aust) Pty Ltd (1992) 29 NSWLR 549
Taylor v J Thomas & Son (1983) 2 ANZ Ins Cas 60-524
United Australia Ltd v Barclays Bank Ltd [1941] AC 1; [1940] 4 All ER 20
White v Overland [2001] FCA 1333

PARTIES: Blackmore Design Group Pty Ltd (Plaintiff)
Phillip Mudge (First Defendant)
James Ferry (Second Defendant)
Rebemta Pty Ltd (Third Defendant)

FILE NUMBER(S): 777 of 2005

COUNSEL: R Bellamy (Plaintiff)
P Taylor SC; P Doyle-Gray (Defendants)

SOLICITORS: Boyd House & Partners (Plaintiff)
Swaab Attorneys (Defendants)

1 The Court is concerned with two notices of motion in relation to the adoption of a report of Ms Janet Grey, who was appointed as referee to determine all issues between the parties by order of the Court made on 17 August 2005 per Johnstone DCJ pursuant to Pt 20 r 20.20.

2 Ms Grey provided her report dated 30 October 2006 to the Court (Exhibit “A”).

3 The plaintiff (for whom Mr R Bellamy of counsel appears) seeks an order that the report be adopted in accordance with Part 20 r 20.24.

4 The defendants (for whom Mr Phillip Taylor SC with whom Mr Doyle Gray of counsel appears) oppose adoption and seek rejection of the report, or at least significant…

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: [2006] NSWDC 160
Decision Date: 15 December 2006

CaseChat Overview and Summary

Blackmore Design Group Pty Ltd initiated legal action against Mudge, Ferry, and Rebemta for unpaid architectural fees. The dispute centered around the identification of the contracting parties and the validity of the claims against each defendant. The case was referred to a referee, whose report the court adopted, subject to certain adjustments. The primary legal issues involved the identification of the contracting parties, the admissibility of new arguments raised by the defendants, and the plaintiff's alteration in the calculation of the claim from what was initially stated in the pleadings.

The court examined whether the plaintiff could pursue alternative claims against the defendants when all admitted to a contract with only one of them. The court also assessed the defendants' points that were not previously raised before the referee and the plaintiff's change in approach to the calculation of the claim. The court ruled that the referee's report was acceptable, notwithstanding the absence of Rebemta from the claims at the reference stage, as Rebemta was not argued by the defendants to be added where liability was found against Mudge and Ferry.

Consequently, the court entered judgments against Mudge, Ferry, and Rebemta for specific sums, adjusted to account for a $150,000 payment made before the proceedings. The final judgments were for Mudge to pay $24,467.54, Ferry to pay nothing, and Rebemta to pay $182,394.18. The court reserved the issue of costs for later determination.

Orders

Orders of the court

Judgment should be entered: (1) against Mudge for (a) $27,500; (b) 99,076.01; total $126,576.01; (2) against Ferry for $99,076.01; (3) against Rebemta for (a) $20,072.80; (b) 26,830.53; (c) 71,500; (d) 32,070; (e) 23,685.20; total $174,158.53.

I have previously drawn attention to the fact that each of Blackmore's alternative pleaded cases sought judgment against Rebemta, yet at the reference, judgment was sought against Mudge and Ferry. Before me the report was not attacked by Blackmore on the basis that Rebemta was not included when it should have been and it was not part of the defendants' argument that Rebemta should be added where liability was found to exist against Mudge and Ferry. Accordingly the appropriate judgments are those ... above. Costs: I will hear the parties on the issue of costs. It was agreed by the parties that the figures ... above must be adjusted to take into account the payment of $150,000 made prior to the commencement of proceedings. The parties agreed that consequential upon the conclusions reached by the Court, the following judgments would follow in the light of the appropriate adjustments:

Judgment in favour of the plaintiff against Mudge in the sum of $17,826.01 plus interest in the sum of $6641.53, being a total of $24,467.54.

Verdict and judgment in favour of Ferry against the plaintiff.

Judgment in favour of the plaintiff against Rebemta in the sum of $132,908.53 plus interest in the sum of $49,485.65 being a total of $182,394.18.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Blackmore Design Group Pty Ltd v Mudge [2006] NSWDC 160 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 November 2006
JUDGMENT DATE:	15 December 2006
JUDGMENT OF:	Rein SC DCJ
DECISION:	See [42].
CATCHWORDS:	Claims by architect for unpaid fees - Adoption of referee’s report - Principles to be applied - Identification of contracting parties - Whether alternative claims in contract against defendants can be pursued where all defendants admit contract with one of them - Identity of contracting party issue - Defendants raise points not taken before referee and change in approach by plaintiff to calculation of claim from that contained in pleading not notified to referee
CASES CITED:	Celthene Pty Ltd v W K J Hauliers Pty Ltd [1981] 1 NSWLR 606 Ciavarella v Balmer (1983) 153 CLR 438 Healey v Commonwealth Bank of Australia [1998] NSWSC 678 Homebush Abattoir Corporation v Bermria Pty Ltd (1991) 22 NSWLR 605 Johnson v Australian Casualty Co Ltd (1992) 7 ANZ Ins Cas 61-109 Karam v ANZ Banking Group Ltd [2003] NSWSC 866 MacMillan v Mumby [2006] NSWCA 74 Mulligan v Benton [1999] NSWCA 339 Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (unreported, NSWCA, 8/06/94, BC9405038) Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Scarf v Jardine (1882) 7 App Cas 345 Skinner & Edwards (Builders) Pty Ltd v Australian Telecommunications Corp (1992) 27 NSWLR 567 Southdown Publications Pty Ltd v ACP Magazines Pty Ltd (2003) 60 IPR 367; [2003] NSWCA 347 Super Pty Ltd v SJP Formworks (Aust) Pty Ltd (1992) 29 NSWLR 549 Taylor v J Thomas & Son (1983) 2 ANZ Ins Cas 60-524 United Australia Ltd v Barclays Bank Ltd [1941] AC 1; [1940] 4 All ER 20 White v Overland [2001] FCA 1333
PARTIES:	Blackmore Design Group Pty Ltd (Plaintiff) Phillip Mudge (First Defendant) James Ferry (Second Defendant) Rebemta Pty Ltd (Third Defendant)
FILE NUMBER(S):	777 of 2005
COUNSEL:	R Bellamy (Plaintiff) P Taylor SC; P Doyle-Gray (Defendants)
SOLICITORS:	Boyd House & Partners (Plaintiff) Swaab Attorneys (Defendants)