Broadlex Services v RCR Resolve FM (No 2) - [2015] NSWSC 1514

Supreme Court

New South Wales

Case Name:	Broadlex Services v RCR Resolve FM (No 2)
Medium Neutral Citation:	[2015] NSWSC 1514
Hearing Date(s):	7 September 2015, 8 September 2015, 9 September 2015, 10 September and 11 September 2015
Decision Date:	16 October 2015
Jurisdiction:	Equity - Commercial List
Before:	McDougall J
Decision:	Verdict for plaintiff for $241,378.77 plus interest on its claim. Verdict for defendant for $187,500 plus interest on its cross-claim. Verdicts to be set off. Plaintiff to have judgment for balance after set-off.
Catchwords:	CONTRACT – claim for payment of debt in respect of unpaid invoices – where plaintiff provided cleaning services to defendant under contract – formation of the contract – whether formed by way of a written offer by plaintiff and acceptance by defendant, or, by written counter-offer by defendant and acceptance by conduct of the plaintiff – effect of an admission by the plaintiff of the latter version of formation – construction of the contract – whether particular cleaning services were within the scope of the ‘regular’ services to be performed or fell outside the scope and were performable only for an additional fee – whether defendant’s general terms and conditions were incorporated into the contract – whether services performed to the required standard – whether certain services which had been paid for were performed at all ESTOPPEL – conventional estoppel – whether parties conducted their relationship on the mutual assumption that the plaintiff would be paid additional remuneration for the contested services DAMAGES – economic loss sustained by defendant in respect of the overarching contract with its principal – whether that loss sustained by reason of the failure of plaintiff to provide extra services without additional remuneration, or by defective performance of those services PRACTICE & PROCEDURE – admissions – application to withdraw refused – whether court may, in any event, decide the question of contract formation on all the evidence, contrary to the pleaded admission – where doing so would work substantial injustice to the other party – whether the evidence supporting the alternative conclusion not persuasive
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Baltic Shipping Company v Dillon, (“the Mikhail Lermontov”) (1991) 22 NSWLR 1 Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Clark v Macourt (2013) 253 CLR 1 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Gould v The Mount Oxide Mines Ltd (in Liq) (1916) 22 CLR 490 Holdway v Arcuri Lawyers (2009) 2 Qd R 18 Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Texts Cited:	Handley, Estoppel by Conduct and Election…

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: [2015] NSWSC 1514
Decision Date: 16 October 2015

CaseChat Overview and Summary

The plaintiff, Broadlex Services, sought payment of unpaid invoices from the defendant, RCR Resolve FM, for cleaning services provided under a contract. The Federal Circuit and Family Court of Australia was required to determine whether the contract was formed by the plaintiff's written offer and the defendant's acceptance, or by the defendant's written counter-offer and the plaintiff's acceptance by conduct. The court also had to determine if the cleaning services were within the scope of the 'regular' services or required additional fees, and if the defendant's general terms and conditions were incorporated into the contract. The court also had to consider if the services were performed to the required standard and whether certain services which had been paid for were performed at all. Additionally, the court considered whether the parties conducted their relationship on the mutual assumption that the plaintiff would be paid additional remuneration for the contested services. Finally, the court considered the economic loss sustained by the defendant in respect of the overarching contract with its principal.

The court held that despite the plaintiff's admission that the contract was formed by way of a written counter-offer by the defendant and acceptance by conduct of the plaintiff, the court could consider the question of contract formation on all the evidence. The court found that the contract was formed by way of a written counter-offer by the defendant and acceptance by conduct of the plaintiff. The court also found that the contested services were within the scope of the 'regular' services and that the defendant's general terms and conditions were incorporated into the contract. The court found that the services were performed to the required standard and that certain services which had been paid for were performed at all. The court found that the parties did not conduct their relationship on the mutual assumption that the plaintiff would be paid additional remuneration for the contested services. The court found that the economic loss sustained by the defendant was not due to the failure of the plaintiff to provide extra services without additional remuneration or by defective performance of those services.

The court ordered the defendant to pay the plaintiff the amount of the unpaid invoices, less a sum to account for services which had been paid for but not performed. The court also ordered that the plaintiff take nothing by way of damages for the economic loss sustained by the defendant. The court refused an application by the plaintiff to withdraw its admission of the formation of the contract by way of a written counter-offer and acceptance by conduct. The court held that to permit the withdrawal of the admission would work substantial injustice to the defendant.

Orders