Davis v Robek Australia Pty Ltd - [2014] VSC 360

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 00849

BETWEEN

DAVID PAUL DAVIS	Plaintiff
- and -
ROBEK AUSTRALIA PTY LTD (ACN 006 308 961) and ANOTHER	Defendants
BY COUNTERCLAIM:
ROBEK AUSTRALIA PTY LTD (ACN 006 308 961) and ANOTHER	Plaintiffs by Counterclaim
- and -
DAVID PAUL DAVIS	Defendant by Counterclaim

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May and 18 July 2014
DATE OF JUDGMENT:	7 August 2014
CASE MAY BE CITED AS:	Davis v Robek Australia Pty Ltd and Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 360

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PRACTICE AND PROCEDURE – Summary judgment application by defendants – Civil Procedure Act 2010, s 63 – Only outstanding issue is costs.

COSTS – Offer of compromise by plaintiff not accepted by defendants – Defendants agreed to entry of judgment for sum greater than offer made by the plaintiff in the offer of compromise – Rule 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Special circumstances warranting departure from the usual order set out in r 26.08(3) – Relevance of amendment of pleading to bring a fresh claim.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. Andreou	McKean Park
For the Defendants	Mr A. Downie	Kalus Kenny Intelex

HER HONOUR:

This proceeding concerns a claim by the plaintiff for the return of deposits paid by him to purchase two apartments in a multi-unit development in Hampton. It was originally commenced in the Magistrates’ Court in January 2013, and uplifted to this Court late last year after the plaintiff amended his statement of claim. The original statement of claim contended that the defendants in their marketing campaign for the development, and in the presentation of a display unit, made misleading representations with respect to the quality of the apartments, in particular, that:

(a) the development was a prestige development with a high quality of work and materials to be used in construction;

(b) apartments in the development would have a high quality finish;

(c) the standard of work and materials used in the apartments would be of a high quality; and

(d) the standard of work and materials used in the apartments would be at least the same as used in the display unit.

The plaintiff relied upon certain defects in the internal finish of the apartments as outlined in the reports prepared by Buildspect Consulting Pty Ltd (Buildspect Reports), to support his claims that the representations outlined above were misleading, and to claim that he was entitled to rescind the contracts of sale and have the deposits paid by him returned to him. In their defence, the defendants, among other things, relied upon certain terms of the Contracts of Sale for the apartments (contract of sale) which purported to exclude any conditions and warranties other than those in the contract of sale, and referred to the marketing material being provided for illustration purposes only. They contended that 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 Davis v Robek Australia Pty Ltd

Details

AGLC: Davis v Robek Australia Pty Ltd [2014] VSC 360
Case: [2014] VSC 360
Decision Date: 7 August 2014

CaseChat Overview and Summary

Davis commenced proceedings against Robek Australia Pty Ltd seeking damages for breach of contract and other claims. Robek Australia applied for summary judgment on the basis that there was no reasonable prospect that the defence would succeed and that the plaintiff’s claims were statute-barred. The plaintiff subsequently made an offer of compromise, which the defendants did not accept. The plaintiff did not, however, accept the defendants’ offer to enter judgment for a sum greater than the offer made in the offer of compromise. The defendants applied for an order for costs. The primary issue before the court was whether the plaintiff was entitled to an order for costs, given that the defendants did not accept the plaintiff’s offer of compromise, but had offered to enter judgment for a sum greater than the offer made in the offer of compromise. The court found that the defendants were not entitled to an order for costs. The court held that the defendants’ offer to enter judgment for a sum greater than the offer made in the offer of compromise did not constitute acceptance of the offer of compromise. Furthermore, the court found that the amendment of the pleading to bring a fresh claim constituted special circumstances warranting departure from the usual order set out in Rule 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The court held that the plaintiff was entitled to an order for costs.

Orders