Dubel Pty Limited v G&A Constructions Pty Limited - [2007] NSWSC 934

CITATION: Dubel Pty Limited –v- G&A Constructions Pty Limited [2007] NSWSC 934

HEARING DATE(S): 9 October 2007

JUDGMENT DATE :
22 October 2007

JUDGMENT OF: Hammerschlag J

DECISION: The report is adopted with modifications. The balance to be repaid by the defendant to the plaintiff is varied to $109,422.69.

CATCHWORDS: CIVIL PRACTICE AND PROCEDURE – Notice of motion for adoption of referees’ report pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW) – Adoption opposed on ground that referees erred in findings – Referees not shown to have acted incorrectly in principle or in any other respect – Report adopted CONTRACT – Whether conversation amounted to oral agreement - whether parties intended to be immediately bound - whether exchange of correspondence in any event amounted to binding agreement

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED: Abigroup Contractors Pty Ltd v Sydney Catchment Authority [2005] NSWSC 662
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Astor Properties Pty Ltd v L’Union des Assurance de Paris (1989) 17 NSWLR 483
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153
Howard Smith & Co Limited v Varawa (1907) 5 CLR 68
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Masters v Cameron (1954) 91 CLR 353
G R Securities Pty Limited v Baulkham Hills Private Hospital Pty Limited (1986) 40 NSWLR 631
Helmos Enterprises Pty Limited v Jaylor Pty Limited (2005) 12 BPR 23,021
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1996) 40 NSWLR 622

PARTIES: Dubel Pty Limited (ABN 22 000 817 505) (formerly Belmadar Constructions Pty Ltd)
G&A Constructions Pty Limited (ABN 14 007 839 456)

FILE NUMBER(S): SC 55039/2005

COUNSEL: D. Miller (Plaintiff / Cross Defendant)
R. Newton (Defendant / Cross Claimant)

SOLICITORS: Avendra Singh Strati & Kam Lawyers (Plaintiff/ Cross Defendant)
James R Knowles Lawyers Pty Ltd (Defendant / Cross Claimant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
AND CONSTRUCTION LIST

TECHNOLOGY
HAMMERSCHLAG J

22 OCTOBER 2007

55039/2005 DUBEL PTY LIMITED (ABN 22 000 817 505) (FORMERLY BELMADAR CONSTRUCTIONS PTY LTD)& ORS –V- G&A CONSTRUCTIONS PTY LIMITED

JUDGMENT

Introduction

1 HIS HONOUR: This is a contest as to whether a report to the Court by referees appointed under r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) should be adopted.

2 The plaintiff (Dubel Pty Limited, formerly Belmadar Constructions Pty Ltd) sued the defendant (G&A Constructions Pty Limited) in the District Court of New South Wales for damages for breach of a subcontract for the installation by the defendant of formwork and placement of concrete (“the works”) at the Mildura West Water Treatment Plant in the State of Victoria.

3 The defendant cross-claimed for monies for work done, for…

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: [2007] NSWSC 934
Decision Date: 22 October 2007

CaseChat Overview and Summary

In the case of Dubel Pty Limited v G&A Constructions Pty Limited, the dispute between the parties involved a disagreement over the interpretation and validity of an oral agreement and subsequent written correspondence, which the parties argued either constituted a binding contract or did not meet the requirements for such a binding agreement. The matter was heard in the Supreme Court of New South Wales, where the court was tasked with determining whether the exchange of correspondence between the parties amounted to a binding contract, and if so, whether this was an immediate binding agreement or a mere memorandum of an oral agreement.

The primary legal issues before the court were whether the conversation between the parties amounted to an oral agreement and, if so, whether the parties intended to be immediately bound by that agreement. Additionally, the court had to consider whether the subsequent exchange of correspondence, despite the absence of a formal written contract, amounted to a binding agreement. These issues required a careful examination of the intention of the parties and the nature of the communications between them.

In delivering the judgment, the court found that the referees had not acted incorrectly in principle or in any other respect. The court held that the conversation between the parties did amount to an oral agreement, and that the parties intended to be immediately bound by that agreement. Furthermore, the exchange of correspondence, even in the absence of a formal written contract, sufficiently demonstrated the parties' intention to be bound by the terms discussed orally. Consequently, the court decided to adopt the referees' report in its entirety.

The final orders of the court included the adoption of the referees' report, which found in favour of Dubel Pty Limited on the issues of the existence and binding nature of the oral agreement and the subsequent correspondence. The court's decision provided clarity on the enforceability of the agreement and resolved the dispute between the parties.

Orders