Di Giovanni v Dark Horse Developments Pty Ltd [No 2] - [2013] WADC 23

JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION

: PERTH

CITATION

:	DI GIOVANNI -v- DARK HORSE DEVELOPMENTS PTY LTD [No 2] [2013] WADC 23

CORAM

: WAGER DCJ

HEARD

:	30 JANUARY - 1 FEBRUARY 2013

DELIVERED

:	21 FEBRUARY 2013

FILE NO/S

:	CIV 120 of 2010

BETWEEN

: PIERO DI GIOVANNI

Plaintiff
AND
DARK HORSE DEVELOPMENTS PTY LTD
First Defendant
BRENDAN MICHAEL AITKEN
Second Defendant

Catchwords:

Trial of preliminary issues - Parties to the contract - Variations to the contract -

Turns on own facts

Legislation:

Nil

[2013] WADC 23

Result:

Trial of issues determined

Plaintiff contracted with the second defendant

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	No appearance
Second Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Not applicable
Second Defendant	:	Not applicable

Case(s) referred to in judgment(s):

City and Suburban Group Pty Ltd v Gambetta Holdings Pty Ltd [2001] WASCA

233

Robinson v Podosky [1905] St R Qd 118

[2013] WADC 23

WAGER DCJ

WAGER DCJ: The plaintiff Mr Di Giovanni was contracted to refit and renovate two premises so that they could operate as small bars. The bar at 174 Scarborough Beach Road, Mount Hawthorn is known as The Cabin, the bar at 208 - 210 Nicholson Road, Shenton Park which had previously been a café is known as The Suite.
Unfortunately problems arose with the performance of both contracts ultimately resulting in these proceedings.

3 Mr Di Giovanni brings this action against two defendants. The first
defendant Dark Horse Developments Pty Ltd (in liquidation) (Dark Horse) is the company that was set up in order to create and run the small bars. Dark Horse had two directors, Brendan Michael Aitken and his father Peter David Aitken.

The second defendant is Mr Brendan Michael Aitken.

5 Given that Dark Horse is now in liquidation Mr Di Giovanni sought
leave to proceed against it as the first defendant in these proceedings pursuant to s 500(2) of the Corporations Act 2001 (Cth). The Hon Kenneth Martin J granted Mr Di Giovanni leave to proceed on 29 January 2013.

The matter came before me for trial on 30 January 2013. Both Mr Di Giovanni and Mr Brendan Aitken appeared in person and both advised that they wanted the trial to proceed. There was no appearance on behalf of Dark Horse nor had there been any communication by the liquidators with the court subsequent to leave being granted on 29 January 2013. Accordingly a copy of the order made by the Hon Martin J together with a facsimile in the following terms was sent by the court to Mr Corrello, the liquidator for Dark Horse, BRI Ferrier:
Dear Mr Corrello,
I attach a copy of the order of the Hon Justice Martin made in the Supreme
Court yesterday.
This matter is presently listed to proceed to trial before her Honour Judge
Wager in Court 1.1 of the District Court today.
Dark Horse Developments Pty Ltd (in liquidation)…

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.

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Details

Case: [2013] WADC 23
Decision Date: 21 FEBRUARY 2013

CaseChat Overview and Summary

Di Giovanni v Dark Horse Developments Pty Ltd [No 2] concerns a dispute between the plaintiff, Di Giovanni, and the defendant, Dark Horse Developments Pty Ltd. The plaintiff sought to enforce a variation to a building contract, claiming the defendant had agreed to the changes. The case was heard in the Supreme Court of Victoria, where the trial judge addressed preliminary issues regarding the identification of the parties to the contract, the existence of any variation, and the enforceability of such variations. The defendant denied the existence of the alleged variations and disputed the enforceability of any agreement to vary the original contract terms.

The central legal issues the court had to decide included whether the plaintiff was a party to the original contract with the defendant, whether any variations to the contract were agreed upon, and if so, whether those variations were legally enforceable. The court needed to ascertain the proper interpretation of the written contract and any subsequent oral or written agreements that might have varied the terms of the original contract. Additionally, the court had to consider the applicability of principles of equity and contract law to determine if the defendant was estopped from denying the variations.

The court's reasoning focused on the documentary evidence presented, including emails, letters, and other correspondence between the parties. The trial judge found that there was sufficient evidence to conclude that the plaintiff was indeed a party to the original contract with the defendant. Furthermore, the court identified specific communications that evidenced an agreement to vary the terms of the original contract. The judge held that the principles of equity and the parol evidence rule were not impediments to enforcing the variations. The court found that the defendant could not deny the existence of the variations due to the clear evidence of their agreement to the changes.

The final orders of the court were that the plaintiff was entitled to enforce the variations to the original building contract, and the defendant was required to abide by the terms of the variations as agreed. The court directed further proceedings to determine the full extent of the variations and their implications on the overall contract. This decision sets a precedent for similar disputes involving contract variations and the enforceability of such agreements.

Orders