Coastline Constructions (Aust) Pty Ltd v Kakavas - [2009] NSWSC 1438

CITATION: Coastline Constructions (Aust) Pty Ltd & Ors v Kakavas & Ors [2009] NSWSC 1438

HEARING DATE(S): 24 August 2009, 25 August 2009, 26 August 2009, 27 August 2009, 28 August 2009, 2 September 2009

JUDGMENT DATE :
18 December 2009

JUDGMENT OF: Schmidt J

CATCHWORDS: CONTRACTS - general contractual principles - three oral agreements - offer and acceptance - agreement contemplating execution of written agreement - two agreements found - sale of property - no executed contract - substantial money advanced - acknowledgment of debt - termination of agreement - parties to contract - orders sought against non-party refused - breach of second agreement established - orders - third agreement not established - breach of contract - claims dismissed restitutio resulting from unenforceable, incomplete contract - recovery of money paid - order made - CONVERSION - intangible property - claims dismissed - TORT - assault - general principles - exemplary and aggravated damages - provocation - criminal proceedings - no order as to exemplary damages - order made - claim for assault and threats - claim dismissed - PROCEDURE - Supreme Court procedure - further amendment to claim - conversion - leave granted - RESTITUTION - recovery of money paid under duress or compulsion

LEGISLATION CITED: Civil Procedure Act 2005
Evidence Act 1995
Land Sales Act 1984 (Qld)
Property Law Act 1987 (QLD)

CATEGORY: Principal judgment

CASES CITED: Abadeen Group Pty Ltd v Bluestone Property Services Pty Ltd; Brown v Hodgkinson [2009] NSWCA 386
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Emilien v Cabbala [1989] 1 Qd R 620
Ferguson v Eakin [1997] NSWCA 106
Fontin v Katapodis [1962] HCA 63; (1962) 108 CLR 177
Freedom v AHR Constructions (1987) 1 Qd R 59
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1
Lumbers v W Cook Builders Pty Ltd [2008] HCA 27; (2008) 232 CLR 635
Masters v Cameron (1954) 91 CLR 353
Niven v SS [2006] NSWCA 338
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Risk Services Australia Limited v Australian National University [2009] HCA 27
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 185 ALR 335
State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951
Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209
Wilson v Darling Island Stevedoring & Lighterage Company Limited [1956] HCA 8;(1956) 95 CLR 43

PARTIES: First Plaintiff - Coastline Constructions (Aust) Pty Limited
Second Plaintiff - Crackers Corporation Pty Ltd
Third Plaintiff/Cross Defendant - Jarrod McCracken
First Defendant/Cross Claimant - Harry Kakavas
Second Defendant - William Kerwick
Third Defendant - Jerry Pilarinos

FILE NUMBER(S): SC 14406/07

COUNSEL: Plaintiffs - Mr MR Gracie with Mr DA Neggo
First Defendant/Cross Claimant…

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.

Keep reading for free

Create a free CaseChat account to read Coastline Constructions (Aust) Pty Ltd v Kakavas and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 1438
Decision Date: 18 December 2009

CaseChat Overview and Summary

The dispute between Coastline Constructions (Aust) Pty Ltd and Mr Kakavas involved three oral agreements concerning the sale of property. The Supreme Court of Queensland examined the validity and enforceability of these agreements, particularly focusing on whether an executed contract existed and whether claims could be pursued against a non-party. The central legal issues revolved around the identification of enforceable agreements, the recovery of substantial money advanced under unenforceable agreements, and the applicability of claims against non-contracting parties. Additionally, the court addressed claims of assault, threats, conversion, and restitution.

The court determined that while two of the agreements were valid and enforceable, the third was not. It was established that Coastline had advanced substantial money under agreements that did not culminate in an executed written contract. However, it was found that Coastline could seek restitution for money paid under the second agreement, which was acknowledged by Mr Kakavas. The court rejected claims against a non-party, finding that Coastline could not enforce rights against a party not involved in the agreements. Regarding the assault claims, the court dismissed claims against Mr Kakavas, finding no basis for the allegations. However, it allowed claims for threats and granted leave to amend the claim further. The court ordered restitution for money paid under the second agreement and dismissed claims for conversion and assault.

In summary, the court allowed a restitution claim for money paid under the second agreement but dismissed all other claims, including those for assault, threats without further action, and conversion. The court's decision underscores the importance of clearly documented agreements and the limitations of pursuing claims against non-parties.

Orders