(1 ) Appeal allowed with costs.; (2) Judgment and orders of the District Court made on 18 July 2003 set aside.; (3) Grant leave to the appellants to amend their Notice of Grounds of Defence by adding para 3A in accordance with the Draft Amended Notice of Grounds of Defence tendered during the hearing of the appeal subject to such terms as to the costs of the earlier proceedings in the District Court and the reference as this Court may impose after receiving further submissions.; (4) Order pursuant to DCR Pt 26 r 5AA that the questions of fact and law raised by para 3A of the Amended Defence be tried separately from any other question.; (5) If the appellants succeed on the separate questions direct that judgment be entered for them in the action and for the plaintiff on the cross-claim, the costs of the separate hearing to be in the discretion of the judge presiding at that hearing. ; (6) If the appellants fail on the separate question direct that judgment be entered for the plaintiff in the action for $199,172.88 with effect from 30 July 2003, the costs of the separate hearing to be in the discretion of the judge presiding at that hearing.; (7) The respondent to file written submissions as to the terms, if any, to be imposed as a condition of granting leave to amend within 14 days.; (8) The appellants to file written submissions in reply within a further 14 days.; (9) The respondent to file any submissions in reply within a further 7 days.; (10 )The respondent to have a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:
CONTRACT - accord and satisfaction - whether terms of settlement amounted to accord and satisfaction of claims under building contract - effect of accord and satisfaction - discharge of original cause of action - WAIVER - whether filing of defence and cross-claim constituted waiver - PRACTICE AND PROCEDURE - amendment of pleadings to accord with basis upon which reference conducted -APPEAL - Referee's report - appeal from adoption of referee's report - whether judge erred in ordering report be adopted. (D)
[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
AGLC
El-Mir v Risk [2005] NSWCA 215
Case
[2005] NSWCA 215
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute arising from a building contract. The appellants, the defendants in the District Court, sought to appeal the adoption of a referee's report by the District Court. The central issue was whether the terms of a settlement agreement between the parties constituted an accord and satisfaction of the claims under the original building contract, thereby discharging the original cause of action. A further question arose as to whether the filing of a defence and cross-claim by the appellants amounted to a waiver of their rights under the settlement agreement.
The Court of Appeal was required to determine whether the District Court judge erred in ordering the adoption of the referee's report. This involved considering the legal effect of the settlement agreement and whether it operated as an accord and satisfaction. The court also had to assess whether the appellants had waived their right to rely on the settlement agreement by their subsequent conduct in filing a defence and cross-claim.
The Court of Appeal allowed the appeal, setting aside the judgment and orders of the District Court. The court granted the appellants leave to amend their defence to plead the settlement agreement. It ordered that the question of whether the settlement agreement constituted an accord and satisfaction be tried separately. Depending on the outcome of this separate trial, judgment would be entered for either the appellants or the respondent. The court also made orders regarding costs and a certificate under the Suitors' Fund Act 1951.
Orders
Orders of the court
(1 ) Appeal allowed with costs.; (2) Judgment and orders of the District Court made on 18 July 2003 set aside.; (3) Grant leave to the appellants to amend their Notice of Grounds of Defence by adding para 3A in accordance with the Draft Amended Notice of Grounds of Defence tendered during the hearing of the appeal subject to such terms as to the costs of the earlier proceedings in the District Court and the reference as this Court may impose after receiving further submissions.; (4) Order pursuant to DCR Pt 26 r 5AA that the questions of fact and law raised by para 3A of the Amended Defence be tried separately from any other question.; (5) If the appellants succeed on the separate questions direct that judgment be entered for them in the action and for the plaintiff on the cross-claim, the costs of the separate hearing to be in the discretion of the judge presiding at that hearing. ; (6) If the appellants fail on the separate question direct that judgment be entered for the plaintiff in the action for $199,172.88 with effect from 30 July 2003, the costs of the separate hearing to be in the discretion of the judge presiding at that hearing.; (7) The respondent to file written submissions as to the terms, if any, to be imposed as a condition of granting leave to amend within 14 days.; (8) The appellants to file written submissions in reply within a further 14 days.; (9) The respondent to file any submissions in reply within a further 7 days.; (10 )The respondent to have a certificate under the Suitors' Fund Act 1951.