CITATION: Cazazure Pty Ltd v Murrumbidgee Estate Developments [2010] NSWDC 142 HEARING DATE(S): 3 February 2010; 10-12 March 2010; 15 April 2010; written submissions to 30 April 2010
JUDGMENT DATE:
28 May 2010JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Judgment for the defendants.
(2) Judgment for the first defendant/cross-claimant against the plaintiff/cross-defendant in the sum of $70,881.04, together with pre- and post-judgment interest at UCPR rates.
(3) The parties have liberty to bring in short minutes or order reflecting the agreed sum for pre- and post-judgment interest for entry of judgment on the cross-claim.
(4) The plaintiff/cross-defendant pay the costs of the first defendant/cross-claimant and of the second defendant.
(5) Liberty to restore re interest and costs
(6) Exhibits retained for 28 days.CATCHWORDS: CONTRACT - whether oral promises to complete a property development by a specific date were made and, if so, whether they formed part of the contract - meaning of "in a timely manner notwithstanding delays" - TORT - claim for negligence pleaded in the alternative to a claim in contract - consideration of liability in tort where a contractual arrangement exists between private parties in a commercial context - TRADE PRACTICES - whether the defendants made representations and, if so, whether the representations were misleading or deceptive LEGISLATION CITED: Contracts Review Act 1980 (NSW)
Fair Trading Act 1984 (NSW), ss 42 and 68
Trade Practices Act 1974 (Cth), ss 51A, 52 and 82CASES CITED: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27
Attorney General of the Commonwealth v Oates (1999) 198 CLR 162
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 754
Frederick W. Nielsen (Canberra) Pty Ltd v PDC Constructions (ACT) Pty Ltd (1987) ACTR 1
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Jones v Dunkel (1959) 101 CLR 298
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Optus Vision Pty Ltd v Australian Rugby Football League Ltd [2004] NSWCA 61
Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd (2004) 12 BPR 22,879; [2004] NSWCA 114
Perre v Apand Pty Limited (1999) 198 CLR 180
Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; (2007) Aust Contract R 90-254; [2007] NSWCA 65
Sykes v Reserve Bank of Australia (1998) 88 FCR 511
Tai Hing Limited v Liu Chong Hing Bank (1986) AC 80
Upper Hunter County DC v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Zhu v Treasurer of New South Wales (2004) 218 CLR 429PARTIES: Plaintiff / Cross-Defendant: Cazazure Pty Ltd (ACN…
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Details
- Case
- [2010] NSWDC 142
- Decision Date
CaseChat Overview and Summary
The case of Cazazure Pty Ltd v Murrumbidgee Estate Developments was before the court, involving a dispute over the completion of a property development project. The plaintiff, Cazazure, alleged that the defendants, Murrumbidgee Estate Developments, made oral promises to complete the project by a specific date, which they failed to honour. Additionally, Cazazure claimed that the defendants' actions constituted misleading or deceptive conduct under the Trade Practices Act. The defendants denied these allegations and filed a cross-claim against Cazazure for outstanding payments.
The legal issues the court needed to resolve included whether the oral promises made by the defendants formed part of the contract, the meaning of the phrase "in a timely manner notwithstanding delays" in the contract, and whether the defendants' actions constituted misleading or deceptive conduct. The court also had to consider whether the defendants could be held liable in tort for negligence, even though there was an existing contractual relationship between the parties. The court examined the evidence and arguments presented to determine the validity of the claims and cross-claims.
After carefully considering the evidence and legal arguments, the court found in favour of the defendants on all counts. The court held that the oral promises made by the defendants were not part of the contract, and the phrase "in a timely manner notwithstanding delays" did not create a binding obligation to complete the project by a specific date. The court also found that the defendants' conduct did not amount to misleading or deceptive conduct, and that there was no basis for holding the defendants liable in tort for negligence. The cross-claim filed by the first defendant against Cazazure was successful, and the court ordered Cazazure to pay the outstanding amount, along with pre- and post-judgment interest and costs.
The final orders of the court included a judgment in favour of the defendants, a judgment in favour of the first defendant/cross-claimant against Cazazure for the outstanding amount, and an order for Cazazure to pay the costs of the first defendant and the second defendant. The parties were granted liberty to bring in short minutes or orders reflecting the agreed sum for pre- and post-judgment interest, and the exhibits were retained for 28 days.
The legal issues the court needed to resolve included whether the oral promises made by the defendants formed part of the contract, the meaning of the phrase "in a timely manner notwithstanding delays" in the contract, and whether the defendants' actions constituted misleading or deceptive conduct. The court also had to consider whether the defendants could be held liable in tort for negligence, even though there was an existing contractual relationship between the parties. The court examined the evidence and arguments presented to determine the validity of the claims and cross-claims.
After carefully considering the evidence and legal arguments, the court found in favour of the defendants on all counts. The court held that the oral promises made by the defendants were not part of the contract, and the phrase "in a timely manner notwithstanding delays" did not create a binding obligation to complete the project by a specific date. The court also found that the defendants' conduct did not amount to misleading or deceptive conduct, and that there was no basis for holding the defendants liable in tort for negligence. The cross-claim filed by the first defendant against Cazazure was successful, and the court ordered Cazazure to pay the outstanding amount, along with pre- and post-judgment interest and costs.
The final orders of the court included a judgment in favour of the defendants, a judgment in favour of the first defendant/cross-claimant against Cazazure for the outstanding amount, and an order for Cazazure to pay the costs of the first defendant and the second defendant. The parties were granted liberty to bring in short minutes or orders reflecting the agreed sum for pre- and post-judgment interest, and the exhibits were retained for 28 days.
Orders
Orders of the court
(1) Judgment for the defendants.
(2) Judgment for the first defendant/cross-claimant against the plaintiff/cross-defendant in the sum of $70,881.04, together with pre- and post-judgment interest at UCPR rates.
(3) The parties have liberty to bring in short minutes or order reflecting the agreed sum for pre- and post-judgment interest for entry of judgment on the cross-claim.
(4) The plaintiff/cross-defendant pay the costs of the first defendant/cross-claimant and of the second defendant.
(5) Liberty to restore re interest and costs
(6) Exhibits retained for 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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