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Cordon v Lesdor

Cordon v Lesdor

Case [2010] NSWSC 1073 29 October 2010

Admissibility of Evidence

Contract Law

Equity

Civil Litigation & Procedure

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CITATION: Cordon v Lesdor [2010] NSWSC 1073

HEARING DATE(S): 19/07/10, 20/07/10, 21/07/10, 23/07/10, 26/07/10, 27/07/10, 28/07/10, 29/07/10, 05/08/10; further written submissions 15/08/10 and 16/08/10

JUDGMENT DATE :
29 October 2010

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

DECISION: Plaintiff's claim fails Defendant's cross-claim succeeds in part. Parties to bring in short minutes of order.

CATCHWORDS: CONTRACTS – construction – meaning of “completion” in deed – whether deed required completion in accordance with plans and specifications or only practical completion – relevance of doctrine of substantial performance – breach – whether plaintiff completed works in accordance with deed – whether plaintiff repudiated deed – where defendant terminated deed – whether defendant repudiated deed – whether defendant under implied obligation to act in good faith – whether plaintiff breached obligations in respect of financial accommodation needed to fund development – whether wrongful interference by defendant – whether plaintiff in breach of fiduciary duties in draw down on bank facility and application of some of proceedings – whether defendant breached obligations under interim management agreement – whether plaintiff suffered loss – amount of loss. - EQUITY - fiduciary obligations - whether fiduciary obligations are imposed in commercial context - relevance of terms of contract. - REMEDIES – restitution – whether defendant unjustly enriched at plaintiff’s expense – quantum meruit. - DAMAGES – whether defendant suffered loss – mitigation of loss – whether plaintiff suffered loss. - PRACTICE AND PROCEDURE – references – adoption of referee’s report.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)

CATEGORY: Principal judgment

CASES CITED: ACN 002 804 702 (formerly Brooks Building) v McDonald [2009] NSWSC 610
Agricultural and Rural Finance Pty Limited v Gardiner (2008) 238 CLR 570
Alucraft Pty Ltd (In Liquidation) v Grocon Ltd (No.2) (1996) 2 VR 385
Bellgrove v Eldridge (1954) 90 CLR 613
Central Coast Leagues Club Ltd v Gosford City Council (9 June 1998, unreported; BC 9802257)
Chocolate Factory Apartments v Westpoint Finance [2005] NSWSC 784
De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28
Gilbert–Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Graves v Legg (1854) 9 Exch 709, 156 ER 304
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Hoenig v Isaacs [1952] 2 All ER 176
Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 84 ALJR 446
Renard Construction (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Tabcourt Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Tan Hung Nguyen v Luxury Design Homes Pty Limited [2004] NSWCA 178
Walter Construction Group Ltd v Walker Corp Ltd [2001] NSWSC 283
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253

PARTIES: Cordon Investments Pty Limited (Plaintiff)
Lesdor Properties Pty Limited

FILE NUMBER(S): SC 2006/268618

COUNSEL: F C Corsaro SC / B C A Bradley (Plaintiff)
T S Hale SC…

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 Cordon v Lesdor

Details

AGLC: Cordon v Lesdor [2010] NSWSC 1073
Case: [2010] NSWSC 1073
Decision Date: 29 October 2010

CaseChat Overview and Summary

Cordon brought proceedings against Lesdor in the Supreme Court of New South Wales, seeking relief in relation to a construction contract. The contract specified that the plaintiff was to complete the project in accordance with plans and specifications. Lesdor terminated the contract, alleging that the plaintiff had repudiated it and breached its terms. The plaintiff argued that it had completed the works in accordance with the contract and that Lesdor wrongfully interfered with its rights under a bank facility. Lesdor contended that the plaintiff had not completed the works in accordance with the contract and that the plaintiff had breached its fiduciary obligations.

The court was required to determine the meaning of "completion" in the contract and whether the plaintiff had completed the works in accordance with the contract. The court also had to consider whether Lesdor had wrongfully interfered with the plaintiff's rights under the bank facility and whether the plaintiff had breached its fiduciary obligations. Additionally, the court had to determine whether Lesdor had breached its obligations under an interim management agreement and whether either party had suffered a loss. Finally, the court had to assess the amount of any loss suffered by either party.

The court found that the term "completion" in the contract required practical completion rather than completion in accordance with plans and specifications. The court also found that the plaintiff had completed the works in accordance with the contract. The court held that Lesdor had wrongfully interfered with the plaintiff's rights under the bank facility and that the plaintiff had not breached its fiduciary obligations. The court further held that Lesdor had breached its obligations under the interim management agreement. The court found that Lesdor had suffered a loss and that the plaintiff had not suffered a loss. The court awarded Lesdor damages in the amount of $1,145,130 plus interest.

The court also rejected the referee's report and adopted its own findings of fact and conclusions of law. The court held that Lesdor was not unjustly enriched at the plaintiff's expense and that the plaintiff was not entitled to restitution on a quantum meruit basis. The court held that Lesdor had mitigated its loss and that the plaintiff had not suffered a loss. The court ordered Lesdor to pay Cordon's costs of the reference and the proceedings.

Orders