Edwards v Sydney Building Group Pty Ltd - [2011] NSWCA 154

Court of Appeal

New South Wales

Case Title: Edwards v Sydney Building Group Pty Ltd

Medium Neutral Citation: [2011] NSWCA 154

Hearing Date(s): 16 May 2011

Decision Date: 23 June 2011

Jurisdiction:

Before:
Allsop P at 1, Basten JA at 54, Sackville AJA at 70

Decision:
Amended summons and appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CONTRACT - building - progress payments - entitlement to suspend work under contract where payments outstanding - whether payments outstanding - characterisation of work "under the contract" for the purpose of determining contractual accounts - whether appropriation had taken place.

CONTRACT - termination - repudiation - whether suspension of work in breach of contract giving rise to right to terminate.

CONTRACT - building - HBA - requirement for contractual variations to be signed by or on behalf of the parties to the contract.

ADMINISTRATIVE LAW - judicial review - whether or not appropriation had taken place on basis of uncontested facts a question with respect to a matter of law.

ADMINISTRATIVE LAW - judicial review - Supreme Court Act 1970 (NSW), s 69(3), error of law on the face of the record - judicial review to be made having regard to the manner in which the case was conducted in the court below.

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28(3), 67 and 67(1)
District Court Act 1973 (NSW), ss 127 and 127(1)
Home Building Act 1989 (NSW), ss 3(1), 6(1)(b), 7(1), 7AA, 7A, 7B and 10
Supreme Court Act 1970 (NSW), ss 69, 69(3) and 69(4)

Cases Cited:
A Smith & Son (Bognor Regis) Ltd v Walker [1952] 2 QB 319
Arnold v The Mayor, Alderman, and Burgesses of the Borough of Poole (1842) 4 Man & G 860; 134 ER 354
Ford (by his tutor Watkinson) v Perpetual Trustees Victoria Ltd [2009] NSWCA 186; 75 NSWLR 42
Heperu Pty Ltd v Belle [2009] NSWCA 252; 76 NSWLR 230
Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186
Lamprell v The Guardians of the Poor of the Billericay Union, in the County of Essex (1849) 3 Ex 283; 154 ER 850
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46
Paine v The Guardians of the Poor of the Strand Union (1846) 8 QB 326; 115 ER 899
Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84; 76 NSWLR 195
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Sullivan v St George Community Housing Ltd [2010] NSWCA 248
The Mayor, Alderman, and Burgesses of the Borough of…

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: [2011] NSWCA 154
Decision Date: 23 June 2011

CaseChat Overview and Summary

The appeal concerned a dispute between Edwards (the appellant) and Sydney Building Group Pty Ltd (the respondent) regarding a building contract. The core of the disagreement revolved around progress payments and the respondent's subsequent suspension of work. The matter came before the Court of Appeal of New South Wales.

The legal issues before the court included whether the respondent was entitled to suspend work under the contract due to outstanding payments, and how to characterise work performed "under the contract" for the purpose of determining contractual accounts, particularly concerning whether an appropriation of payments had occurred. Additionally, the court considered whether the respondent's suspension of work constituted a repudiation of the contract, thereby giving the appellant a right to terminate. The court also addressed whether contractual variations required signature by or on behalf of the parties to the contract, and whether the question of appropriation, based on uncontested facts, was a matter of law amenable to judicial review.

The Court of Appeal analysed the contractual provisions concerning progress payments and the right to suspend work. It considered the principles of appropriation in contract law, determining whether payments made by the appellant had been applied to specific outstanding amounts or if they remained unappropriated. The court found that the respondent's actions were justified under the contract and did not amount to a repudiation. The court also examined the requirements for contractual variations, noting that they must be executed in accordance with the contract's terms. The court further considered the scope of judicial review, particularly in relation to errors of law on the face of the record, and how the conduct of the case in the court below informed this assessment.

The appeal was dismissed, and the amended summons was also dismissed, with costs awarded to the respondent.

Orders

Orders of the court

Amended summons and appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Edwards v Sydney Building Group Pty Ltd
Medium Neutral Citation:	[2011] NSWCA 154
Hearing Date(s):	16 May 2011
Decision Date:	23 June 2011
Jurisdiction:
Before:	Allsop P at 1, Basten JA at 54, Sackville AJA at 70
Decision:	Amended summons and appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CONTRACT - building - progress payments - entitlement to suspend work under contract where payments outstanding - whether payments outstanding - characterisation of work "under the contract" for the purpose of determining contractual accounts - whether appropriation had taken place. CONTRACT - termination - repudiation - whether suspension of work in breach of contract giving rise to right to terminate. CONTRACT - building - HBA - requirement for contractual variations to be signed by or on behalf of the parties to the contract. ADMINISTRATIVE LAW - judicial review - whether or not appropriation had taken place on basis of uncontested facts a question with respect to a matter of law. ADMINISTRATIVE LAW - judicial review - Supreme Court Act 1970 (NSW), s 69(3), error of law on the face of the record - judicial review to be made having regard to the manner in which the case was conducted in the court below.
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28(3), 67 and 67(1) District Court Act 1973 (NSW), ss 127 and 127(1) Home Building Act 1989 (NSW), ss 3(1), 6(1)(b), 7(1), 7AA, 7A, 7B and 10 Supreme Court Act 1970 (NSW), ss 69, 69(3) and 69(4)
Cases Cited:	A Smith & Son (Bognor Regis) Ltd v Walker [1952] 2 QB 319 Arnold v The Mayor, Alderman, and Burgesses of the Borough of Poole (1842) 4 Man & G 860; 134 ER 354 Ford (by his tutor Watkinson) v Perpetual Trustees Victoria Ltd [2009] NSWCA 186; 75 NSWLR 42 Heperu Pty Ltd v Belle [2009] NSWCA 252; 76 NSWLR 230 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Lamprell v The Guardians of the Poor of the Billericay Union, in the County of Essex (1849) 3 Ex 283; 154 ER 850 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46 Paine v The Guardians of the Poor of the Strand Union (1846) 8 QB 326; 115 ER 899 Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84; 76 NSWLR 195 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Sullivan v St George Community Housing Ltd [2010] NSWCA 248 The Mayor, Alderman, and Burgesses of the Borough of…