Cabport Pty Ltd v Marinchek

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cabport Pty Ltd v Marinchek [2013] NSWCA 51

Hearing dates:

25 February 2013

Decision date:

12 March 2013

Before:

Meagher JA at [1];
Barrett JA at [45];
Tobias AJA at [46]

Decision:

(1) Appeal allowed.

(2) Set aside the judgment for the respondent in the sum of $183,331.80.

(3) Judgment for the respondent in the sum of $27,136.44, that judgment to take effect on 19 December 2011.

(4) Set aside the orders for costs made by Olsson DCJ on 19 December 2011.

(5) The respondent pay the appellant's costs of this appeal.

(6) In relation to the costs of the proceedings before Hughes DCJ and Olsson DCJ, if the parties are unable to agree as to the orders to be made and do not file consent orders within 7 days of the date of these orders, the appellant should lodge with the Court and serve within 14 days of the date of those orders written submissions concerning the orders sought. The respondent should then lodge and serve any response within 7 days thereafter. The Court will determine what orders should be made on the basis of those written submissions.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - building and construction - compromise - whether claims of alleged overcharging by appellant builder had been compromised and released under a settlement agreement between the parties - whether primary judge addressed correct questions given interpretation of settlement agreement adopted by this Court in Marinchek v Cabport Pty Ltd [2010] NSWCA 334 - whether primary judge erred in findings as to respondent's state of knowledge regarding circumstances giving rise to claims of overcharging - claims for recovery of alleged overpayments compromised and released

Cases Cited:

Barclays Bank Ltd v WJ Simms Son & Cook (Southern) Ltd [1980] QB 677
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353
Marinchek v Cabport Pty Ltd [2010] NSWCA 334

Category:

Principal judgment

Parties:

Cabport Pty Ltd (Appellant)
Scott Marinchek (Respondent)

Representation:

Counsel:
J C Kelly SC, R Zikmann (Appellant)
T Davie (Respondent)
Solicitors:
Norton Rose Australia (Appellant)
Gillis Delaney Lawyers (Respondent)

File Number(s):

2012/84955

 Decision under appeal 

Date of Decision:

2011-12-19 00:00:00

Before:

Olsson DCJ

File Number(s):

2005/296071

Judgment

1. MEAGHER JA: In 2004 and early 2005 the appellant (Cabport) carried out building works on a residential property of the respondent (Mr Marinchek) in Vaucluse, Sydney. There were disputes concerning those works. They included disputes as to the terms of and parties to the contract pursuant to which the works were undertaken,…