Cong v NT Construction Accounting Services Pty Ltd - [2006] NTSC 49

Cong & Anor v NT Construction Accounting Services Pty Ltd
[2006] NTSC 49
PARTIES:CONG, Dinh Phuc

AND
THI, Le Lieu
v
NT CONSTRUCTION ACCOUNTING SERVICES PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:LA15 of 2006 (20401213)
DELIVERED:  22 JUNE 2006
HEARING DATES:  6, 15, 16 JUNE 2006
JUDGMENT OF:  MARTIN (BR) CJ
APPEAL FROM:  LOCAL COURT DARWIN, 20401213, 11 April 2006
CATCHWORDS:
MAGISTRATES
Jurisdiction and procedure generally – application for leave to appeal against refusal to join party – final or interlocutory order – leave to appeal refused.
Local Court Act (NT), s 19; Local Court Rules (NT), r 1.12, r 4.04 and r 12.05; Supreme Court Rules (NT), r 9.03
Brown v Northern Territory of Australia [2005] NTSC 26; Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 1; Scott v Northern Territory (2005) 147 NTR 6, applied.
Carr v Finance Corporation Australia Ltd (1981) 147 CLR 246; Eatts v Dawson (1990) 93 ALR 497; Hall v Nominal Defendant (1966) 117 CLR 423; In The Matter of an Appeal by Luck (2003) 78 ALJR 177; Licul v Corney (1976) 180 CLR 213, followed.
Commercial Union Assurance Limited v White (unreported Northern Territory Court of Appeal delivered 21 November 1997), not followed.
REPRESENTATION:
Counsel:
1^st and 2^nd Appellant:  A McLaren
Respondent:  D Alderman
Solicitors:
1^st and 2^nd Appellant:  A McLaren
Respondent:  A Crane
Judgment category classification:         C
Judgment ID Number:  Mar0608
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cong and Anor v NT Construction Accounting Services Pty Ltd
[2006] NTSC 49

No. LA15 of 2006 (20401213)
IN THE MATTER of an application for leave to appeal under the Local Court Act:

BETWEEN

DINH PHUC CONG

First Appellant

AND:

LE LIEU THI

Second Appellant

AND

NT CONSTRUCTION ACCOUNTING SERVICES PTY LTD
Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 22 JUNE 2006)
Introduction

This is an application for leave to appeal against orders of the Local Court refusing an application by the defendants to join Mr Peter Cavenagh (“PC”) as a party to the proceedings. I will refer to the applicants in this Court as the defendants and to the respondent as the plaintiff.
Background – facts - pleadings
The defendants carried on businesses in partnership known as “VN Farms” and “VN Mango & Vegetable Produce”. In about August 2001, after discussions with PC, the defendants agreed to purchase mangos grown on three properties for a total price of $220,000. It is the plaintiff’s case that the agreement was reached with the plaintiff through PC acting as the plaintiff’s disclosed or undisclosed agent. The defendants assert that the agreement was with PC personally and that no contract existed between the defendants and the plaintiff.
According to the plaintiff, the defendants removed so many of the Bowen mango crop from the properties as they wanted and in August…

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 Cong v NT Construction Accounting Services Pty Ltd

Details

AGLC: Cong v NT Construction Accounting Services Pty Ltd [2006] NTSC 49
Case: [2006] NTSC 49
Decision Date: 22 JUNE 2006

CaseChat Overview and Summary

In the case of Cong v NT Construction Accounting Services Pty Ltd, the defendants sought leave to appeal against the Local Court's refusal to join Mr Peter Cavenagh as a party to the proceedings. The Local Court had rejected the defendants' application to join Mr Cavenagh, who they claimed was the agent through whom the contract was agreed. The plaintiff argued that Mr Cavenagh was not an agent and that the contract was between the plaintiff and the defendants. The Local Court's refusal to join Mr Cavenagh as a party was the subject of the appeal.

The legal issue before the court was whether the order refusing to join Mr Cavenagh as a party was a final or interlocutory order. The defendants argued that the order was interlocutory and thus appealable under the Local Court Act (NT). The plaintiff contended that the order was final because it disposed of the defendants' rights in relation to the application to join Mr Cavenagh. The court considered the relevant authorities, including Brown v Northern Territory of Australia, Nationwide News Pty Ltd v Bradshaw, Scott v Northern Territory, and others, to determine the nature of the order. The court concluded that the order was interlocutory and thus appealable.

The court found that the order concerning the joinder of a party was an interlocutory order as it did not finally dispose of the rights of the parties in a principal cause between them. The court applied the legal test established in Hall v Nominal Defendant, Licul v Corney, Carr v Finance Corporation Australia Ltd, and In The Matter of an Appeal by Luck to determine the legal rather than practical effect of the decision. The court rejected the defendants' argument that the order was final because it disposed of the defendants' rights in relation to the application to join Mr Cavenagh. The court concluded that leave to appeal against the order refusing to join Mr Cavenagh as a party was refused.

The court also ordered that the costs of the application to join Mr Cavenagh be taxed and payable immediately. The defendants sought leave to appeal against that order, and the court agreed to hear the parties further with respect to that application.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for leave to appeal against orders of the Local Court refusing an application by the defendants to join Mr Peter Cavenagh (“PC”) as a party to the proceedings. I will refer to the applicants in this Court as the defendants and to the respondent as the plaintiff. Background – facts - pleadings The defendants carried on businesses in partnership known as “VN Farms” and “VN Mango & Vegetable Produce”. In about August 2001, after discussions with PC, the defendants agreed to purchase mangos grown on three properties for a total price of $220,000. It is the plaintiff’s case that the agreement was reached with the plaintiff through PC acting as the plaintiff’s disclosed or undisclosed agent. The defendants assert that the agreement was with PC personally and that no contract existed between the defendants and the plaintiff. According to the plaintiff, the defendants removed so many of the Bowen mango crop from the properties as they wanted and in August 2001 the plaintiff claimed from the defendants the contract sum of $220,000. The plaintiff has pleaded payments of $80,000 and $40,000 in September and October 2001 leaving a balance owing of $100,000. The defendants have pleaded that in September 2001 they reached agreement with PC to reduce the sale price to $160,000. The defendants agree that a total of $120,000 has been paid, but say that the balance owing was $40,000. According to the plaintiff’s pleadings, prior to September 2002 the parties agreed that the balance outstanding was $100,000 and that the plaintiff would forgo payment of so much of that amount as represented the value in services that the defendant would provide to the plaintiff in each of the years 2002 and 2003. Those services involved picking, packing and freight services with respect to the plaintiff’s Bowen mango crops for those years. The plaintiff has pleaded that it was an implied term of this compromise, “being an accord and satisfaction”, that if the defendants failed to provide services to the value of $100,000, after taking into account the value of the services provided, the balance would be immediately due and payable. The plaintiff also asserts that the defendants owed the plaintiff a duty of care. In essence it is the plaintiff’s case that in breach of the compromise the defendants failed to provide services to the standard required by the mango industry and, as a consequence of negligent and reckless services, the defendants caused the plaintiff to suffer damage. The plaintiff’s pleading asserts that by reason of the breach of the compromise and negligent performance of the agreement, the plaintiff is entitled to the balance owing of $53,026.11 or damages of at least that amount. The defendants deny the plaintiff’s case. It is pleaded in the defence that the defendants agreed to provide services to PC by way of washing, sorting, grading, packing and transporting of PC’s mangos as a means of paying off the balance of $40,000. The defendants have pleaded that they provided the necessary services between 16 October and 4 November 2002 and that excess services were provided because the total value of the services was $46,973.89. Notwithstanding that the defendants have pleaded that they dealt at all times with PC personally and that any contracts were made with PC and not the plaintiff, nevertheless the defendants have sought to “counterclaim” from the plaintiff the value of the excess services, namely, $6,973.89. Applications to join PC

Evidence

Evidence Before The Court

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Decision

Reasons for decision

With respect to their Honours who thought otherwise in Commercial Union, in my view an order concerning the joinder of a party is an interlocutory order: Eatts v Dawson (1990) 93 ALR 497. Any order made on an interlocutory application finally disposes of the rights of the parties with respect to that particular application. However, the test is not whether the order finally disposes of the rights with respect to the particular application. The test is whether the order finally disposes of the rights of the parties in a principal cause between them and regard must be had to the legal rather than the practical effect of the decision: Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation Australia Ltd (1981) 147 CLR 246; In The Matter of an Appeal by Luck (2003) 78 ALJR 177.Conclusion For these reasons, leave to appeal against the order refusing the application to join PC is refused. The Magistrate also ordered that costs of the application to join PC be taxed and payable immediately. The defendants seek leave to appeal against that order and I will hear the parties further with respect to that application.

Ratio Decidendi

Legal Principle Established

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