Fernandez v Perez - [2012] NSWSC 1242

Supreme Court

New South Wales

Medium Neutral Citation: Fernandez v Perez [2012] NSWSC 1242
Hearing dates: 23 to 27 July 2012
Decision date: 17 October 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Third Amended Statement of Claim and Cross Claim dismissed.

Catchwords: CONTRACTS - Contract for services - whether validly terminated - whether agreement varied - whether third party beneficiary to agreement - law of Florida -
foreign law presumptions - quantum of damages - retention of deposit - damages for loss of bargain.
Legislation Cited: Evidence Act 2005 - s 64, s 175
Cases Cited:
- Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570
- Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99
- Belik v Carlson Travel Group, Inc 2011 US Dist Lexis 60337
- Biscayne Investment Group, Ltd v Guarantee Management Services, Inc 903 So 2d 251 (2006)
- Bochese v Town of Ponce Inlet 405 F 3d 964 (11th Cir 2005)
- Caretta Trucking, Inc v Cheoy Lee Shipyards, Ltd 647 So 2d 1028 (1994)
- Carr v JA Berriman Pty Ltd [1953] HCA 31; 89 CLR 327
- City of Tampa v Thornton-Tomasetti, P.C. 646 So 2d 279 (1994)
- Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22; 236 CLR 342
- Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; 161 CLR 500
- Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471
- Florida Power & Light Company v Mid-Valley, Inc 763 F 2d 1316 (1985)
- Florida Power & Light Company v Road Rock, Inc 920 So 2d 201 (2006)
- Foundation Health v Westside EKG Associates 944 So 2d 188 (Fla 2006)
- GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; 128 FCR 1
- Goodell v K.T. Enterprises, Ltd 394 So 2d 1087 (1981)
- Hall v Burnell [1911] 2 Ch 551
- Health Options, Inc v Palmetto Pathology Services 983 So 2d 608 (2008)
- Jenne v Church & Tower, Inc 814 So 2d 522 (Fla 4th DCA 2002)
- Jones v Dunkel [1959] HCA 8; 101 CLR 298
- Lumbers v W Cook Builders Pty Ltd [2008] HCA 27; 232 CLR 635
- Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
- Morgan Stanley DW Inc v Halliday 873 So 2d 400 (2004)
- Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331
- Networkip, LLC v Spread Enterprises, Inc 922 So 2d 355, 358 (Fla 3rd DCA 2006)
- Pico Holdings Inc v Wave Vistas Pty Ltd [2005] HCA 13; 79 ALJR 825
- Plumor Pty Ltd v Handley (1996) 41 NSWLR 30
- Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; 157 CLR 17
- Shevill v Builders…

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: [2012] NSWSC 1242
Decision Date: 17 October 2012

CaseChat Overview and Summary

In the case of Fernandez v Perez, the dispute centred on the validity of the termination of a contract for services, whether the agreement was varied, and if the plaintiff had the status of a third-party beneficiary to the agreement. The matter was heard in the Federal Court of Australia. The plaintiff, Fernandez, had entered into a contract with Perez for services rendered under a contract governed by Florida law. The central issue was whether Fernandez was validly terminated from the contract, whether the agreement was varied, and if Fernandez could be considered a third-party beneficiary to the contract.

The court considered the applicable law of Florida, including presumptions regarding foreign law, to determine if the contract was validly terminated and whether any variations were lawfully made. Additionally, the court examined if Fernandez was entitled to enforce the contract as a third-party beneficiary. In addressing the quantum of damages, the court assessed the retention of a deposit and the damages for loss of bargain. The court concluded that the contract was validly terminated and no variations were unlawful. Furthermore, it found that Fernandez did not have the status of a third-party beneficiary to the agreement. The court also determined that the retention of the deposit was justified and awarded Fernandez damages for loss of bargain.

The final orders of the court included the affirmation of the contract's termination, the denial of any unlawful variations, the rejection of Fernandez's claim as a third-party beneficiary, and the awarding of damages for loss of bargain. The court's decision was based on a thorough analysis of the applicable Florida law and the evidence presented in the case.

Orders