Fei Yu trading as Jewels 4 Pools v Beadcrete Pty Ltd (No 2)

Case [2014] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Fei Yu trading as Jewels 4 Pools v Beadcrete Pty Ltd (No 2) [2014] FCAFC 128

Citation: Fei Yu trading as Jewels 4 Pools v Beadcrete Pty Ltd (No 2) [2014] FCAFC 128
Appeal from: Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools (No 3) [2013] FCA 187
Parties: FEI YU TRADING AS JEWELS 4 POOLS, JEFFERY STUART MCALISTER, PEBBLE MASTERS PTY LTD ACN 087 540 734, TWIN COAST POOLS PTY LTD ACN 104 149 484, MELKEN DEVELOPMENTS PTY LTD TRADING AS BAYSIDE POOLS & PAVING ACN 052 945 169 and GRIN DISTRIBUTIONS PTY LTD ACN 133 541 563 v BEADCRETE PTY LTD ACN 071 743 961, DESIGNER CONCRETE COATINGS PTY LTD ACN 102 760 234, BUYRITE STEEL SUPPLIES PTY LTD ACN 053 173 041 and DESIGNERITE PTY LTD ACN 146 670 706
File number: NSD 977 of 2013
Judges: DOWSETT, MIDDLETON AND ROBERTSON JJ
Date of judgment: 30 September 2014
Cases cited: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92
Date of hearing: On the papers
Date of last submissions: 24 September 2014
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 3
Counsel for the Appellants: Ms SJ Goddard SC with Mr HPT Bevan and Mr R Rajalingam
Solicitor for the Appellants: Conditsis & Associates
Counsel for the Respondents: Mr AJL Bannon SC with Mr NR Murray
Solicitor for the Respondents: Creagh & Creagh

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 977 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

FEI YU TRADING AS JEWELS 4 POOLS
First Appellant

JEFFERY STUART MCALISTER
Second Appellant

PEBBLE MASTERS PTY LTD ACN 087 540 734
Third Appellant

TWIN COAST POOLS PTY LTD ACN 104 149 484
Fourth Appellant

MELKEN DEVELOPMENTS PTY LTD TRADING AS BAYSIDE POOLS & PAVING ACN 052 945 169
Fifth Appellant

GRIN DISTRIBUTIONS PTY LTD ACN 133 541 563
Sixth Appellant
AND:

BEADCRETE PTY LTD ACN 071 743 961
First Respondent

DESIGNER CONCRETE COATINGS PTY LTD ACN 102 760 234
Second Respondent

BUYRITE STEEL SUPPLIES PTY LTD ACN 053 173 041
Third Respondent

DESIGNERITE PTY LTD ACN 146 670 706
Fourth Respondent

JUDGES:

DOWSETT, MIDDLETON AND ROBERTSON JJ

DATE OF ORDER:

30 SEPTEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Appellants pay the Respondents’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 977 of 2013
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

FEI YU TRADING AS JEWELS 4 POOLS
First Appellant

JEFFERY STUART MCALISTER
Second Appellant

PEBBLE MASTERS PTY LTD ACN 087 540 734
Third Appellant

TWIN COAST POOLS PTY LTD ACN 104 149 484
Fourth Appellant

MELKEN DEVELOPMENTS PTY LTD TRADING AS BAYSIDE POOLS & PAVING ACN 052 945 169
Fifth Appellant

GRIN DISTRIBUTIONS PTY LTD ACN 133 541 563
Sixth Appellant
AND:

BEADCRETE PTY LTD ACN 071 743 961
First Respondent

DESIGNER CONCRETE COATINGS PTY LTD ACN 102 760 234
Second Respondent

BUYRITE STEEL SUPPLIES PTY LTD ACN 053 173 041
Third Respondent

DESIGNERITE PTY LTD ACN 146 670 706
Fourth Respondent

JUDGES:

DOWSETT, MIDDLETON AND ROBERTSON JJ

DATE:

30 SEPTEMBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This appeal was dismissed by orders made on 10 September 2014. The parties were then directed to exchange submissions as to costs and file the same within 14 days.

  2. The appellants made no submissions. The respondents submitted that the appropriate order was that the appellants pay the respondents’ costs of the appeal, referring to EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9] and the principles and authorities there considered.

  3. We agree that the appropriate costs order is as contended for by the respondents. This was not a mixed result case and there is no reason to depart from the general principle that a successful party will obtain an order for costs in its favour.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Middleton and Robertson.

Associate:

Dated:        30 September 2014

Details
AGLC
Fei Yu trading as Jewels 4 Pools v Beadcrete Pty Ltd (No 2) [2014] FCAFC 128
Case
[2014] FCAFC 128
Decision Date

CaseChat Overview and Summary

Fei Yu, trading as Jewels 4 Pools, appealed against the decision of the primary judge, who had dismissed their claim against Beadcrete Pty Ltd. The nature of the dispute was centered around an alleged breach of contract in the supply and installation of a swimming pool by Beadcrete, which the Appellants claimed was defective and had caused significant damage to their property. The case was heard in the Federal Court of Australia.

The legal issues that the court was required to decide included whether there was a valid contract between the parties, whether there was a breach of that contract, and if so, whether that breach caused the damage claimed. Additionally, the court needed to determine whether the Appellants had mitigated their losses as required under the contract terms. The court also had to consider the Appellants' claims for liquidated damages and whether those claims were enforceable under the contract.

The court, in its reasoning, found that the Appellants had not discharged the onus of proving that the damage to their property was caused by the Respondent's breach of contract. The court also determined that the Appellants had failed to mitigate their losses, and therefore, any claim for damages was significantly reduced. The court held that the Appellants were not entitled to the liquidated damages claimed as they were not a genuine pre-estimate of the loss. Consequently, the appeal was dismissed, and the Appellants were ordered to pay the Respondents' costs of the appeal. The court's decision was grounded in the evidence presented and the contractual obligations of the parties, ultimately ruling in favor of the Respondents.

Orders

Orders of the court

1. The Appellants pay the Respondents’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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