Bull v Lee - [2009] NSWCA 215

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Bull v Lee [2009] NSWCA 215
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40275/08

HEARING DATE(S):
16 July 2009

JUDGMENT DATE:
28 July 2009

PARTIES:
Brendan Alex Bull (First Appellant)
Kathleen Ann Bull (Second Appellant)
Heny Xueheng Lee (Respondent)

JUDGMENT OF:
Allsop P Campbell JA Young JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
18/06

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

LOWER COURT DATE OF DECISION:
4 June 2008

COUNSEL:
D Ash (Appellants)
FS Santisi (Respondent)

SOLICITORS:
Caldwell Martin Cox, Camden (Appellants)
JN Legal, Bankstown (Respondent)

CATCHWORDS:
CONTRACTS – Whether agreement void because terms unclear, ambiguous and internally inconsistent – construction of amount due under agreement – whether quoting a price “including interest” at a particular rate imposes obligation to pay interest at that rate – COSTS – of trial when District Court proceedings results in judgment for amount well within jurisdictional limit of Local Court – of appeal when parties sue on legally incoherent agreement and over-claim.

LEGISLATION CITED:
Civil Procedure Act 2005
Local Courts Act 1982
Suitors’ Fund Act 1951

CATEGORY:
Principal judgment

CASES CITED:
Brendan Alex Bull & Kathleen Ann Bull v Heny Xueheng Lee (NSW District Court, 4 June 2008, unreported)
Young v Queensland Trustees Ltd (1956) 99 CLR 560

TEXTS CITED:

DECISION:
Appellants entitled to judgment, for an amount much less than they sought, with costs of the trial not exceeding costs recoverable in Local Court. Each party to bear own costs of appeal, respondent to have Suitors’ Fund certificate.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40275/08
ALLSOP P
CAMPBELL JA
YOUNG JA
28 JULY 2009

BRENDAN ALEX BULL & ANOR v HENY XUEHENG LEE

Judgment

ALLSOP P: I agree with Campbell JA and Young JA.
CAMPBELL JA:
Nature of the Appeal
In and prior to March 1998 the Appellants, Mr and Mrs Bull were in partnership with Ms Sharon Koryzma in the operation of a business known as “Sydney Fried Chicken” in leased premises in Dumaresq Street, Campbelltown. They sued the Respondent, Ms Heny Lee, in the District Court of NSW alleging, in broad terms, that Ms Lee had agreed to buy their share of the business from them, but had not paid all the money she was obliged to pay under the agreement for sale. They also alleged that the Respondent had agreed with them to compromise their claim to the unpaid monies for the sum of $80,000. The relief they sought in their Amended Statement of Claim was:
“$80,000 or alternatively such amount as is found to be owing under the sale agreement after hearing or after the taking of an account”
together with interest “as agreed or at the prescribed rate”.
His Honour Judge Delaney dismissed the Appellants’ claim: Brendan Alex Bull & Kathleen Ann Bull v Heny Xueheng Lee (NSW District Court, 4 June 2008, unreported).
Though the Notice…

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.

Continue reading Bull v Lee

Details

AGLC: Bull v Lee [2009] NSWCA 215
Case: [2009] NSWCA 215
Decision Date: 28 July 2009

CaseChat Overview and Summary

In *Bull v Lee*, the New South Wales Court of Appeal considered a dispute between the Appellants and the Respondent concerning payments due under a Management Agreement. The core of the disagreement revolved around the construction of the agreement, specifically whether it was void for uncertainty and how to calculate the outstanding amount owed by the Respondent. The Appellants sought to recover a sum they believed was due, while the Respondent contended the agreement was legally incoherent and that payments had ceased due to issues with its terms.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the Management Agreement was void for uncertainty, ambiguity, or internal inconsistency, particularly in relation to the amount due. Secondly, the court had to consider whether a term quoting a price "including interest" at a particular rate imposed a binding obligation to pay interest at that specified rate. The court also had to address the appropriate costs orders, given that the trial judgment resulted in a sum significantly less than initially claimed and well within the jurisdictional limit of the Local Court.

The Court of Appeal, in its reasoning, affirmed the trial judge's findings that the parties had executed a Management Agreement before July 1999, and that the Respondent was obliged to make payments under its terms. The court found that payments made prior to 1 July 1999 could not have reduced the purchase price under the agreement entered into on that date. The court concluded that, based on the admissions and the judge's findings regarding payments, a sum of less than $20,000 remained unpaid when payments ceased in November 2004. The court provided a spreadsheet calculation for the parties to consider and make further submissions on.

Regarding costs, the Appellants were entitled to judgment for an amount significantly less than they sought. The court ordered that the costs of the trial should not exceed the costs recoverable in the Local Court, acknowledging that the final judgment amount fell within its jurisdictional limit. Each party was ordered to bear their own costs of the appeal, and the Respondent was granted a Suitors' Fund certificate.

Orders

Orders of the court

Appellants entitled to judgment, for an amount much less than they sought, with costs of the trial not exceeding costs recoverable in Local Court. Each party to bear own costs of appeal, respondent to have Suitors' Fund certificate.

17/08/2009 - Reference to District Court in penultimate sentence, amended to Local Court. - Paragraph(s) 50

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, there are clear findings by the judge in paras [28] and [29] of the judgment that the documents identified in para 2 of the Amended Statement of Claim were executed in July 1999. The judge expressly found that the Respondent had entered into a Management Agreement with the Appellants before July 1999 (judgment para [2]), and it is clear from paras [23]-[27] of the judgment that the judge accepted that that management was on the terms of a Management Agreement that had been tendered in the proceedings as Exhibit B. That Management Agreement obliged the Respondent to make payments to the Appellants. Any payments that the Respondent made to the Appellants prior to 1 July 1999 could not have been in reduction of the purchase price payable under the agreement that the judge found was entered on 1 July 1999.Conclusion The effect of the construction of the admissions about the agreement, and the judge’s findings about the payments made, is that when the payments ceased to be made at the end of November 2004 an amount of less than $20,000 remained unpaid. I attach to this judgment a spreadsheet calculation that I have had made, that illustrates such a calculation. It is appropriate, however, to give the parties the opportunity to consider the calculation, and to make any further submissions in writing that they may wish to make about the detail of how, consistently with the principles of construction stated in this judgment, the calculation should proceed, and what the end result of a calculation conducted in accordance with the principles of construction set out in this document should be.Costs In the course of argument there was discussion about the costs orders that should be made in the event that the proper construction of the document, and the judge’s findings, resulted in a finding that the Respondent owed an amount of the order of $12,000 at the time she ceased making payments. Mr Ash accepted that in that eventuality his client could not recover more for the costs in the court below than would have been appropriate had the proceedings been begun in the Local Court. In that respect, it is relevant that the jurisdictional limit of the General Division of the Local Court is $60,000: definition of “jurisdictional limit” in section 4 Local Courts Act 1982, conferral of jurisdiction in section 65 Local Courts Act. Pre-judgment interest claimed under section 100 Civil Procedure Act 2005 is disregarded for the purpose of determining whether a claim falls within the jurisdictional limits of the Local Court: section 65(4) Local Courts Act. In my view this concession by Mr Ash was rightly made. On the assumption that the calculation attached to these reasons correctly carried through the principles stated in the reasons, I would deal with costs in the court below by ordering the Respondent to pay Appellants’ costs in the court below, assessed in an amount not to exceed the amount that would have been payable if the proceedings had been brought in the Local Court of NSW.

Ratio Decidendi

Legal Principle Established

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