BM Sydney Building Materials Pty Ltd v Awt Building Group (Aust) Pty Ltd; BM Sydney Building Materials Pty Ltd v Awt Building Pty Ltd

Case [2017] NSWCA 177

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177
Hearing dates:28 June 2017
Decision date: 24 July 2017
Before: Beazley P at [1];
Ward JA at [2],
Leeming JA at [3]
Decision:

In relation to proceeding 2017/85334:
1. Appeal allowed.
2. Set aside the orders made on 15 February 2017 in favour of AWT Building Group (AUST) Pty Ltd and Mr Teng.
3. Remit the proceeding to the District Court for a retrial.
4. AWT Building Group (AUST) Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd’s costs of the appeal.
5. Costs of the new trial to be in the discretion of the judge before whom the new trial is conducted.

 In relation to proceeding 2017/85330:
1. Appeal allowed.
2. Set aside the orders made on 15 February 2017 in favour of AWT Building Pty Ltd and Mr Teng.
3. Remit the proceeding to the District Court for a retrial.
4. AWT Building Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd’s costs of the appeal.
5. Costs of the new trial to be in the discretion of the judge before whom the new trial is conducted.
Catchwords: APPEAL - defendants admitted liability on claim for debt but relied on estoppel based on oral agreement - primary judge accepted defendants’ evidence and made adverse credit-based findings against plaintiff’s witness - whether primary judge failed to have regard to contemporaneous documents - whether primary judge misapprehended evidence said to corroborate oral agreement - whether this Court could give judgment in favour of plaintiff - appeal allowed and retrial ordered.
Legislation Cited: Corporations Act 2001 (Cth), s 1308
Cases Cited: Cook's Construction Pty Ltd v Brown [2004] NSWCA 105
Croucher v Cachia [2016] NSWCA 132
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Category:Principal judgment
Parties:

2017/85334
BM Sydney Building Materials Pty Ltd (Appellant)
AWT Building Group (AUST) Pty Ltd (First respondent)
Wenge Teng (Second Respondent)

  2017/85330
BM Sydney Building Materials Pty Ltd (Appellant)
AWT Building Group Pty Ltd (First respondent)
Hui Li (Second Respondent)
Wenge Teng (Third Respondent)
Representation:

Counsel:
M P Cheshire SC, B K Nolan (Appellant)
G W McGrath SC, A Norrie (Respondents excluding Mr Li)

  Solicitors:
Deutsch Partners (Appellant)
Wang Lawyers (Respondents excluding Mr Li)
File Number(s):2017/85334; 2017/85330
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
15 February 2017
Before:
Curtis DCJ
File Number(s):
2015/178811; 2015/178796

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff/appellant (BM Sydney) supplied building materials to two related companies (AWT), which did not pay. AWT admitted the indebtedness, but said that there had been oral agreement between the companies’ directors giving…

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Details
AGLC
BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177
Case
[2017] NSWCA 177
Decision Date

CaseChat Overview and Summary

In the proceedings before the Court of Appeal of New South Wales, BM Sydney Building Materials Pty Ltd appealed against decisions of the primary judge in two separate matters against Awt Building Group (Aust) Pty Ltd and Awt Building Pty Ltd, and Mr Teng. The dispute concerned claims for debt, where the defendants admitted liability but sought to rely on an estoppel defence based on an alleged oral agreement.

The primary legal issues before the Court of Appeal were whether the primary judge erred in accepting the defendants' evidence and making adverse credit findings against the plaintiff's witness, whether the primary judge failed to adequately consider contemporaneous documents, and whether the primary judge misapprehended evidence that was said to corroborate the oral agreement. The Court was asked to determine if it could grant judgment in favour of the plaintiff.

The Court of Appeal found that the primary judge had failed to have sufficient regard to contemporaneous documents and had misapprehended certain evidence. Consequently, the Court allowed the appeals, set aside the orders made by the primary judge in favour of the defendants, and remitted both proceedings to the District Court for a retrial. The defendants were ordered to pay the plaintiff's costs of the appeal, with the costs of the new trial to be determined by the judge conducting that trial.

Orders

Orders of the court

In relation to proceeding 2017/85334:

1. Appeal allowed.

2. Set aside the orders made on 15 February 2017 in favour of AWT Building Group (AUST) Pty Ltd and Mr Teng.

3. Remit the proceeding to the District Court for a retrial.

4. AWT Building Group (AUST) Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd’s costs of the appeal.

5. Costs of the new trial to be in the discretion of the judge before whom the new trial is conducted.

In relation to proceeding 2017/85330:

1. Appeal allowed.

2. Set aside the orders made on 15 February 2017 in favour of AWT Building Pty Ltd and Mr Teng.

3. Remit the proceeding to the District Court for a retrial.

4. AWT Building Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd’s costs of the appeal.

5. Costs of the new trial to be in the discretion of the judge before whom the new trial is conducted.

Background

Background to the litigation

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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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