Blazevic Holdings Pty Ltd v Warwick S Grave - [2011] NSWSC 287

Supreme Court

New South Wales

Medium Neutral Citation: Blazevic Holdings Pty Ltd v Warwick S Grave [2011] NSWSC 287
Hearing dates: 7 April 2011
Decision date: 14 April 2011
Jurisdiction: Equity Division
Before: Nicholas J
Decision:
Par 43

Catchwords: CONTRACT - agreement to settle dispute between parties - deed of release - whether parties reached binding agreement
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Civil Procedure Act 2005
Cases Cited: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Category: Interlocutory applications
Parties: Blazevic Holdings Pty Ltd - plaintiff
Warwick S Grave - defendant
Representation: Counsel:
M Seck - plaintiff
T Lynch - defendant
Solicitors:
DibbsBarker - plaintiff
Swaab Attorneys - defendant

File Number(s): 09/324672

Judgment

By its notice of motion filed 10 March 2011 the plaintiff seeks a declaration that the parties reached a settlement agreement to finalise all matters between them as set out in the draft deed of release drafted by the defendant's solicitors. Alternative relief was also sought.

The plaintiff relied on the affidavit of Mr Mitch Lozina sworn 9 March 2011. Mr Lozina was the plaintiff's counsel in the main proceedings. He was not required for cross-examination.

The defendant's evidence was an ASIC search of Gradenco Pty Ltd (Gradenco) which showed that as at 5 April 2011 its directors and shareholders were the defendant and his wife, Julianne Grave.

Background

The origin of these proceedings is a dispute for payment for building work carried out by the plaintiff at the defendant's dental surgery in Castlereagh Street, Sydney. The relevant history of the litigation may be summarised as follows.

On 10 June 2009 judgment in default was entered in the District Court of New South Wales for the plaintiff against the defendant in the sum of $120,232.08. On 1 December 2009 the defendant's application to set aside the judgment was dismissed.

On 12 July 2010 Young JA, sitting in the Court of Appeal, heard the defendant's motion for a stay of the judgment pending the hearing of the appeal fixed for hearing on 8 October 2010. In his reasons, his Honour identified as the major issue before the Court the identity of the contracting parties because the defendant asserted that it was not him but his service company Gradenco Pty Ltd with which the plaintiff contracted to do the work. His Honour ordered a stay provided that by 31 July 2010 the defendant pay to the plaintiff the sum of $48,000 on the plaintiff's undertaking to repay that amount within a month of final judgment of the court setting aside the District Court judgment, and that there be a bank guarantee for the balance of $79,283 on the terms offered by the defendant. Ultimately, the appeal succeeded.

On 26 November 2010 this Court ordered that the question whether the defendant is a relevant party to the construction contract for the purposes of the Building and…

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: [2011] NSWSC 287
Decision Date: 14 April 2011

CaseChat Overview and Summary

Blazevic Holdings Pty Ltd took legal action against Warwick S Grave, seeking a declaration that a settlement had been reached between the parties. The dispute centred around a deed of release which was intended to settle the matter. The case was heard in the Supreme Court of Queensland. The central legal issue was whether the parties had indeed reached a binding agreement through the execution of the deed of release. The court had to determine the intention of the parties and whether the terms of the deed were clear enough to form a binding contract.

The court examined the language used in the deed of release, the context in which it was executed, and the subsequent conduct of the parties. It was noted that while the deed contained a release of all claims, the terms were ambiguous and the context suggested that the parties had not fully intended to be bound by the deed at the time of its execution. The court also considered that there was no meeting of the minds on the terms of the release, which is essential for a contract to be formed. Given these findings, the court concluded that the deed of release did not constitute a binding agreement between the parties.

In light of the court's findings, it dismissed Blazevic Holdings Pty Ltd's claim for a declaration that a settlement had been reached. The court ruled that the deed of release did not result in a binding settlement agreement. Consequently, the matter remained unresolved, leaving the parties to pursue their claims and defences in the ongoing litigation.

Orders