Cuzeno Pty Ltd v Powercell Pty Ltd

CITATION:	Cuzeno Pty Ltd v Powercell Pty Ltd [1999] NSWCA 344
FILE NUMBER(S):	CA 40628/98
HEARING DATE(S):	18 August 1999
JUDGMENT DATE:	22 September 1999
PARTIES :	Cuzeno Pty Limited ACN 001 291 738 v Powercell Pty Limited ACN 051 968 613
JUDGMENT OF:	Priestley JA at 1; Stein JA at 44; Davies AJA at 45

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 2325/97
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Williams

COUNSEL:	Appellant - T.G.R. Parker Respondent - C. Harris
SOLICITORS:	Appellant - Michie, Shehadie & Co Respondent - Willis Bowring
CATCHWORDS:	Contract for sale of land in association with contract to build; Rescission; New agreement for contract to build
ACTS CITED:	Conveyancing Act s 54A District Court Act s 134
CASES CITED:	Coulton v Holcombe (1986) 162 CLR O'Rourke v Hoeven [1974] 1 NSWLR 622 Regent v Millett (1976) 133 CLR 679 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
DECISION:	Appeal by Cuzeno dismissed with costs.; Application for leave for Powercell to file cross appeal dismissed, no order for costs.

THE SUPREME COURT
OF NEW SOUTH WALES

COURT OF APPEAL

CA 40628/98
DC 2325/97

PRIESTLEY JA
STEIN JA
DAVIES AJA

22 September 1999

CUZENO PTY LTD v POWERCELL PTY LTD

CONTRACT FOR SALE OF LAND IN ASSOCIATION WITH CONTRACT TO BUILD - RESCISSION - NEW AGREEMENT FOR CONTRACT TO BUILD - SECTION 54A CONVEYANCING ACT.

A builder and a developer agreed the builder would build a block of units on the developer’s land and that the builder would be paid by a transfer of half the units. The builder entered into contracts to sell each of his units to individual purchasers. Then he and the developer agreed to rescind the agreement to transfer the units to him; instead he would receive an agreed sum for building the units. The trial judge found that the developer had agreed to “ take over as vendor ” the contracts entered into by the builder. Later the developer refused to do this and sold the units to different purchasers.

One purchaser obtained judgment against the builder for breach of contract. The builder cross claimed against the developer. The trial judge ordered the developer to pay damages. On appeal, the developer:

1. challenged the trial judge’s findings of fact;
2. submitted the new agreement was an unsuccessful novation;
3. submitted s 54A of the Conveyancing Act applied;
4. challenged the amount of damages.

The court held, as to 1, that the trial judge’s factual findings should not be disturbed, as to 2, that novation was not involved in the agreement found by the judge, as to 3, (i) that part performance, in the manner litigated at the trial, answered any s 54A claims, (ii) that points raised about the availability of part performance at common law could not be raised in the appeal in view of the way the issue was joined and fought at the trial, and as to 4, that the judge’s findings of damage…