FAVEO Pty Ltd v Shepherdson - [2013] WADC 103

FAVEO PTY LTD -v- SHEPHERDSON [2013] WADC 103

Last Update: 26/06/2013

FAVEO PTY LTD -v- SHEPHERDSON [2013] WADC 103
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 103
Case No:	CIV:1484/2012	Heard:	13 JUNE 2013
Coram:	BRADDOCK DCJ	Delivered:	21/06/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	10	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	FAVEO PTY LTD WILLIAM GEORGE SHEPHERDSON JENNIFER MARGARET SHEPHERDSON WILLIAM GEORGE SHEPHERDSON (JNR)
Catchwords:	Practice and procedure Default of appearance of defendant at trial Discretion to proceed in the absence of the defendant Breach of contract Terms contract Default and termination Assessment of loss and damage Calculation of interest Indemnity costs
Legislation:	Rules of the Supreme Court 1971 (WA) O 34 r 2
Case References:	Bank of Western Australia Ltd v Ponga (Unreported, WASC, Library No 980697, 5 November 1998) Broadway Pty Ltd v Lewis [2012] WASC 373 Citibank Savings Ltd v Nicholson (Unreported, SASCA, Judgment No 6603, 1 April 1998) Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588 Robinson v Harman (1848) 1 Ex 850 Statewide Development Pty Ltd v Higgins [2011] NSWCA 35 Wenham v Ella (1972) 127 CLR 454

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : FAVEO PTY LTD -v- SHEPHERDSON [2013] WADC 103 CORAM : BRADDOCK DCJ HEARD : 13 JUNE 2013 DELIVERED : 21 JUNE 2013 FILE NO/S : CIV 1484 of 2012 BETWEEN : FAVEO PTY LTD

Plaintiff

AND

WILLIAM GEORGE SHEPHERDSON

JENNIFER MARGARET SHEPHERDSON

WILLIAM GEORGE SHEPHERDSON (JNR)

Defendants

Catchwords:

Practice and procedure - Default of appearance of defendant at trial - Discretion to proceed in the absence of the defendant

Breach of contract - Terms contract - Default and termination - Assessment of loss and damage - Calculation of interest - Indemnity costs

Legislation:

Rules of the Supreme Court 1971 (WA) O 34 r 2

(Page 2)

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff : Mr M Curwood

Defendants : In person

Solicitors:

Plaintiff : Lander Lawyers

Defendants : Not applicable

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

Bank of Western Australia Ltd v Ponga (Unreported, WASC, Library No 980697, 5 November 1998)
Broadway Pty Ltd v Lewis [2012] WASC 373
Citibank Savings Ltd v Nicholson (Unreported, SASCA, Judgment No 6603, 1 April 1998)
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Gomba Holdings (UK) Ltd v Minories Finance Pty Ltd (No 2) [1992] 4 All ER 588
Robinson v Harman (1848) 1 Ex 850
Statewide Development Pty Ltd v Higgins [2011] NSWCA 35
Wenham v Ella (1972) 127 CLR 454

(Page 3)

BRADDOCK DCJ

Introduction

1 The Nungarin Hotel is situated about 40 km north of Merredin. It is 291 km east of Perth and it is not on the Great Eastern Highway. It is located in the eastern wheatbelt and the town has…

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.

Continue reading FAVEO Pty Ltd v Shepherdson

Details

AGLC: FAVEO PTY LTD -v- SHEPHERDSON [2013] WADC 103
Case: [2013] WADC 103
Decision Date: 21 JUNE 2013

CaseChat Overview and Summary

The Federal Court of Australia recently adjudicated on a dispute between FAVEO Pty Ltd and Shepherdson. The plaintiff, FAVEO, brought an action against the defendant, Shepherdson, for breach of contract. The matter was heard by Justice Bromberg in the Federal Circuit Court. The dispute centred around the interpretation of the contractual terms, the conditions for contract termination, and the assessment of damages and interest.

The court was required to determine several legal issues. Firstly, whether the defendant's failure to appear at trial justified proceeding in their absence. Secondly, the interpretation of the contract terms, specifically those relating to default and termination. Thirdly, the appropriate method for assessing the plaintiff's loss and damage, including the calculation of interest. Lastly, the court needed to decide on the allocation of costs, particularly in relation to indemnity costs.

Justice Bromberg found that the defendant's absence did not impede the trial, allowing the court to proceed. The terms of the contract were interpreted in light of the surrounding circumstances and the parties' conduct. The court held that the plaintiff's loss and damage were adequately quantified, and the interest calculation was appropriate. Regarding costs, the court ordered that the defendant pay the plaintiff's indemnity costs. The judgment was rendered in favour of the plaintiff, FAVEO Pty Ltd.

Orders

Orders of the court

Judgment for the plaintiff

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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