Coleman v Seaborne Pty Ltd - [2007] NSWCA 60

New South Wales

Court of Appeal

CITATION: Coleman v Seaborne Pty Ltd [2007] NSWCA 60

HEARING DATE(S): 15/03/07

JUDGMENT OF: Hodgson JA at 1, 44-49, 51; Tobias JA at 50; Young CJ in Eq at 2-43

EX TEMPORE JUDGMENT DATE: 15 March 2007

DECISION: Appeal dismissed with costs.

CATCHWORDS: CONTRACTS- Recovery on quantum meruit- Whether necessary to plead "contractual" or "restitutionary" quantum meruit- Pleading alleging "quantum meruit" sufficient to cover both types of claim. PRACTICE- Reference by court to referee- Referee's report adopted by court- Whether court's adoption of referee's error an appealable error of law- Held no appealable error.

CASES CITED: Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13
Horton v Jones (1934) 34 SR (NSW) 359
Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (C/A, 8.6.1994, unreported)
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Seven Sydney Pty Ltd v Fuji Xerox Australia Pty Ltd [2004] NSWSC 902

PARTIES: Delise and Tom Coleman (A)
Seaborne Pty Ltd (R)

FILE NUMBER(S): CA 40211/06

COUNSEL: F Corsaro SC (A)
G Inatey SC and H J A Neal (R)

SOLICITORS: Gadens Lawyers (A)
Holman Webb (R)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4910/03

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 24/03/06

CA 40211/06
DC 4910/03

HODGSON JA
TOBIAS JA
YOUNG CJ in EQ
Thursday 15 March 2007

DELISE AND TOM COLEMAN v SEABORNE PTY LTD

Judgment

1 HODGSON JA: I will ask Young CJ in Eq to give the first judgment.

2 YOUNG CJ in EQ:: This is an appeal from a decision of his Honour Judge Nield in the District Court in which he adopted a report of a referee and found a verdict and gave judgment for the respondent for $190,599.37 being $147,895.94 for the claim and the balance for interest to the date of judgment.

3 The respondent was the plaintiff in the District Court and sought to be paid for renovating a boat, the "Kelly D", owned by the female appellant.

4 There is no doubt that the respondent did work on the boat and indeed it was paid some $415,890.50 by the appellants in respect of that work. The respondent claimed, however, additional amounts which were disputed by the appellants. The appellants also cross-claimed for alleged defective work.

5 The respondent’s original pleading claimed the balance of the money due under a contract for a fixed price of $444,063.07 plus variations, increasing the amount due to $473,446.13 less the amount paid.

6 The male appellant originally denied he was a party to any contract with the respondent. The female appellant admitted that she had a contract with the respondent, but denied the terms were as pleaded.

7 The respondent then amended its statement of claim very significantly. The amended pleading was that it was retained by one or both of the appellants to work on the "Kelly D" and would be paid $444,063.07 plus extras at a reasonable price. Alternatively, the…

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 Coleman v Seaborne Pty Ltd

Details

AGLC: Coleman v Seaborne Pty Ltd [2007] NSWCA 60
Case: [2007] NSWCA 60
Decision Date: 15 March 2007

CaseChat Overview and Summary

Coleman (the appellant) brought a claim against Seaborne Pty Ltd (the respondent) seeking recovery on a quantum meruit basis. The dispute concerned the value of work performed by the appellant for the respondent. The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the appellant's pleading of "quantum meruit" was sufficient to encompass both contractual and restitutionary claims, and whether the trial court's adoption of a referee's report, which allegedly contained an error of law, constituted an appealable error.

The Court of Appeal held that a pleading of "quantum meruit" is sufficient to cover both contractual and restitutionary claims, as the term itself encompasses claims for reasonable remuneration for services rendered. Furthermore, the Court found that the trial judge's adoption of the referee's report, even if the report contained an error, did not constitute an appealable error of law on the part of the judge. The Court reasoned that the referee's findings were adopted as findings of fact by the judge, and the judge was not required to independently re-examine the evidence or the referee's reasoning process in a way that would create a new error of law.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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CITATION:	Coleman v Seaborne Pty Ltd [2007] NSWCA 60
HEARING DATE(S):	15/03/07
JUDGMENT OF:	Hodgson JA at 1, 44-49, 51; Tobias JA at 50; Young CJ in Eq at 2-43
EX TEMPORE JUDGMENT DATE:	15 March 2007
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACTS- Recovery on quantum meruit- Whether necessary to plead "contractual" or "restitutionary" quantum meruit- Pleading alleging "quantum meruit" sufficient to cover both types of claim. PRACTICE- Reference by court to referee- Referee's report adopted by court- Whether court's adoption of referee's error an appealable error of law- Held no appealable error.
CASES CITED:	Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13 Horton v Jones (1934) 34 SR (NSW) 359 Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (C/A, 8.6.1994, unreported) Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Seven Sydney Pty Ltd v Fuji Xerox Australia Pty Ltd [2004] NSWSC 902
PARTIES:	Delise and Tom Coleman (A) Seaborne Pty Ltd (R)
FILE NUMBER(S):	CA 40211/06
COUNSEL:	F Corsaro SC (A) G Inatey SC and H J A Neal (R)
SOLICITORS:	Gadens Lawyers (A) Holman Webb (R)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4910/03
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	24/03/06