EPS Constructions Pty Ltd v Mass Holdings Pty Ltd

[2015] NSWCA 317

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	EPS Constructions Pty Ltd v Mass Holdings Pty Ltd [2015] NSWCA 317
Hearing dates:	16 September 2015
Decision date:	15 October 2015
Before:	Leeming JA at [1]; Simpson JA at [2]; Sackville AJA at [3]
Decision:	1. Appeal dismissed. 2. Appellants pay the costs of the first and second respondents.
Catchwords:	CONTRACT – formation – whether concluded agreement reached between partners and building company – whether primary judge erred in making findings of fact
Cases Cited:	Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153 Fox v Percy [2003] HCA 22; 214 CLR 118 Mass Holdings Pty Ltd v EPS Constructions Pty Ltd [2015] NSWSC 217 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Category:	Principal judgment
Parties:	EPS Constructions Pty Limited (First Appellant) Naames Pty Limited (Second Appellant) Sarahton Pty Limited (Third Appellant) Emade Semaan (Fourth Appellant) Mass Holdings Pty Limited (First Respondent) Charles Massih (Second Respondent) Semcorp (Aust) Pty Limited (Third Respondent) Elie Kaltoum (Fourth Respondent)
Representation:	Counsel: BW Walker SC / BF Katekar (Appellants) R Dick SC / P Bolster (First and Second Respondents)   Solicitors: Henry Davis York (Appellants) Rankin Ellison Lawyers (First and Second Respondents)
File Number(s):	2015/132246
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 217 Date of Decision: 13 March 2015 Before: Darke J File Number(s): 2011/356937

Judgment

1. LEEMING JA: I agree with Sackville AJA.

2. SIMPSON JA: I agree with Sackville AJA.

3. SACKVILLE AJA: This is an appeal from a decision of a judge of the Equity Division (Darke J). [1] The appeal challenges findings of fact made by the primary Judge in resolving what senior counsel for the appellants described as “a straightforward common law claim in contract”.

   1. Mass Holdings Pty Ltd v EPS Constructions Pty Ltd [2015] NSWSC 217 (Primary Judgment).

4. The claim was made by the first respondent (Mass Holdings), one of four members of a partnership or joint venture. (It is common ground that nothing turns on whether the four were partners or joint venturers.) Mass Holdings sued on what it said was an oral agreement between the partners (as I shall describe them) and the first appellant (EPS), a building company associated with one of the partners.

5. Mass Holdings claimed that the partners and EPS had entered into a binding oral agreement under which EPS agreed to pay the partners an amount equivalent to the difference between two sums. The first of the two sums was the amount Housing NSW agreed to pay EPS to construct units on land that Housing NSW had acquired from the partners. The second was a fixed sum of $8,096,000, agreed between the partners and EPS. Since the price Housing NSW [2] agreed to…