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

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.