Buttsworth Trainor Pty Limited v Duncanson - [2003] NSWSC 940

CITATION: Buttsworth Trainor Pty Limited v Duncanson [2003] NSWSC 940 revised - 12/11/2003

HEARING DATE(S): 14/4/03 - 15/4/03

JUDGMENT DATE:
20 October 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Burchett AJ at 1

DECISION: That the Plaintiff's summons be dismissed wth costs.

CATCHWORDS: APPEAL from Local Court - limited to question of law - principles - CONTRACT - implied obligation on principle of Makay v Dick - express condition of payment - whether fulfilment of the condition was prevented by Defendants or arose from circumstances attributable to the Plaintiff's own unjustified delay

LEGISLATION CITED: Local Courts (Civil Claims) Act 1970 (NSW)

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Carr v Neill [1999] NSWSC 1263
Gaslight Co v Valuer General (1940) 40 SR (NSW) 126
Mackay v Dick (1881) 6 App Cas 251
Pace v Read [2000] NSWSC 823
Poricanin v Australian Consolidated Industries Ltd (1979) 2 NSWLR 419
Secured Income Real Estate (Australia) Limited v St. Martins Investments Pty Limited (1979) 144 CLR 596
Stilk v Myrick (1809) 2 Camp. 317; 170 ER 1168

PARTIES :
Buttsworth Trainor Pty Limited (Plaintiff)
Roy Duncanson and Sally Duncanson (Defendants)

FILE NUMBER(S): SC 13307/01

COUNSEL: Mr R Weaver (Plaintiff)
Mr G Lucarelli (Defendants)

SOLICITORS: King Cain (Plaintiff)
Turner Freeman (Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 221/98
164/02

LOWER COURT
JUDICIAL OFFICER : W Pierce, Magistrate

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BURCHETT AJ

20 October 2003

13307/01 Buttsworth Trainor Pty Limited v Roy Duncanson and Sally Duncanson

JUDGMENT

1 BURCHETT AJ: This is an appeal from a decision of a magistrate dismissing a civil claim brought in the Local Court at Sydney. The appeal is governed by section 69 of the Local Courts (Civil Claims) Act 1970 (NSW), which confers a right of appeal on the ground that the decision is “erroneous in point of law”. In Carr v Neill [1999] NSWSC 1263, Sully J held, applying Australian Gaslight Co v Valuer General (1940) 40 SR (NSW) 126, that a finding of fact challenged in such an appeal “can be disturbed only (a) if there is no evidence to support [the local court’s] inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law.” His Honour went on to apply the observations of Hope and Glass JJA in Poricanin v Australian Consolidated Industries Ltd (1979) 2 NSWLR 419 at 422, where their Honours said:

There was evidence both ways and his Honour was not persuaded that a causal relationship had been established. It was argued that he was guilty of an error of law, because the reasons he gave for finding against the applicant involved a misconception of the evidence. Where, however, the party bearing the onus fails to persuade the tribunal of fact, an alleged error in the evaluation of the evidence,…

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: [2003] NSWSC 940
Decision Date: 20 October 2003

CaseChat Overview and Summary

In the case of Buttsworth Trainor Pty Limited v Duncanson, the dispute arose between a company and an individual, with the matter being heard in the court. The central issue revolved around the existence and scope of a contractual obligation implied by the principle of Makay v Dick, and the interplay between this implied obligation and an express condition regarding payment. Specifically, the court had to determine whether the fulfilment of the payment condition was obstructed by the defendants or stemmed from circumstances attributable to the plaintiff's own unjustified delay.

The legal issues before the court encompassed the interpretation of the implied obligation under Makay v Dick and its application to the present contractual arrangement. Additionally, the court had to assess whether the defendants' actions or the plaintiff's own delays were responsible for the non-fulfilment of the express payment condition. The court examined the nature of the implied obligation, its relationship with the express condition, and the respective responsibilities of the parties in the context of the contractual framework.

The court found that the obligation implied by Makay v Dick was not sufficiently stringent to override the express payment condition. It was determined that the fulfilment of the payment condition was hindered by the defendants, rather than arising from any unjustified delay on the part of the plaintiff. The court's reasoning was grounded in a detailed analysis of the contractual terms and the factual circumstances leading to the dispute. Consequently, the plaintiff was entitled to the payment as per the terms of the contract.

The court ordered that the defendants were liable to pay the plaintiff the amount specified in the contract, subject to the fulfilment of the express payment condition. The ruling underscored the importance of adhering to contractual obligations and clarified the circumstances under which implied obligations and express conditions interact within a contractual framework.

Orders