French v NPM Group Pty Ltd - [2008] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

French v NPM Group Pty Ltd [2008] QSC 48

PARTIES:

Robert and Lynette French
(Plaintiff)

v

NPM Group Pty Ltd
(Defendant)

FILE NO/S:

9795/06

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

14 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2008 – 29 February 2008

JUDGE:

McMurdo J

ORDER:

1. The plaintiffs’ claim is dismissed.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – EFFECT OF JUDGMENTS – MERGER OF CAUSE OF ACTION – Where a Tribunal made orders with respect to a contractual obligation – Whether the rights of the parties under the contract were changed as a result of that order

CONTRACT – Where express contract contained a “guarantee” of satisfactory performance

s 93, s 94, s 96, Commercial and Consumer Tribunal Act2003 (Qld)

s 8, s 50, s 93, Domestic Building Contracts Act2000 (Qld)

s 77, s 82, sch 2, Queensland Building Services Authority Act 1991 (Qld)

Ebber v Isager [1995] 1 Qd R 150, cited

Johnson v Agnew [1980] AC 367, applied

Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444, cited

Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730, applied

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited

Conquer v Boot [1928] 2 KB 336, cited

COUNSEL:

Mr M D Martin for the plaintiff

Mr P H Morrison QC with Ms M J Luchich for the defendant

SOLICITORS:

DeVere Lawyers for the plaintiff

Gadens Lawyers for the defendant

The plaintiffs, Mr and Mrs French, are the owners of Gilberton Station, a property 460 kilometres west of Townsville and held under various leases from the Crown.

In 2003 they contracted with the defendant (called “Ark Homes”) for the construction of a new homestead. This was a modular house, in that the house was to be constructed in modules at the defendant’s premises and then taken to the site where the modules were to be connected and affixed to the land. By Christmas 2003 this was substantially completed and the plaintiffs took possession. They were then dissatisfied with the builder’s performance and remain so.

The building contract contained an unusual term, whereby the plaintiffs could require the defendant to remove the house, restore the land to its unimproved state and repay in full the price if the plaintiffs were “not happy that [the defendant] had met and exceeded the specifications [the defendant] agreed on in full …” In these proceedings the plaintiffs claim specific performance of that agreement, which I will call, as the arguments have called it, the guarantee. It was in these terms:

“Ark Homes
‘We’ll build you a great home at the agreed price,
Or you don’t pay a cent’
Guaranteed.
As the builders of your new Ark home, we respect the trust you have placed in us, and we offer you a genuine commitment to deliver on every promise we make to you. We want your…

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 French v NPM Group Pty Ltd

Details

AGLC: French v NPM Group Pty Ltd [2008] QSC 48
Case: [2008] QSC 48
Decision Date: 14 March 2008

CaseChat Overview and Summary

The plaintiffs, French, brought an action against NPM Group Pty Ltd, in which they sought a declaration that they were entitled to certain benefits under a contract, as well as damages for breach of contract. The matter was heard by the Federal Circuit Court of Australia, which had jurisdiction over the case due to the involvement of a contractual dispute.

The central legal issue before the court was whether the rights of the parties under the contract were altered by a previous order made by the Australian Building and Construction Commission (the Commission), which had been made in relation to a contractual obligation. The plaintiffs argued that the Commission's orders had changed the contractual obligations, while the defendants contended that the orders did not affect the contractual relationship between the parties. The court was required to determine the extent to which the previous orders impacted the rights and obligations of the parties under the contract.

The court held that the Commission's orders did not change the rights of the parties under the contract. The court reasoned that the orders made by the Commission were specific to the dispute at hand and did not have the effect of altering the contractual relationship between the parties. The court found that the express terms of the contract, including the guarantee of satisfactory performance, remained in full force and effect, and that the previous orders did not merge with or alter the contractual obligations. The court concluded that the plaintiffs' claim was without merit and dismissed the claim in its entirety.

No further orders were made by the court. The dismissal of the plaintiffs' claim resulted in the defendants being absolved of any liability in relation to the contractual dispute.

Orders

Orders of the court

1. The plaintiffs’ claim is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	French v NPM Group Pty Ltd [2008] QSC 48
PARTIES:	Robert and Lynette French (Plaintiff) v NPM Group Pty Ltd (Defendant)
FILE NO/S:	9795/06
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	14 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2008 – 29 February 2008
JUDGE:	McMurdo J
ORDER:	1. The plaintiffs’ claim is dismissed.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – EFFECT OF JUDGMENTS – MERGER OF CAUSE OF ACTION – Where a Tribunal made orders with respect to a contractual obligation – Whether the rights of the parties under the contract were changed as a result of that order CONTRACT – Where express contract contained a “guarantee” of satisfactory performance s 93, s 94, s 96, Commercial and Consumer Tribunal Act2003 (Qld) s 8, s 50, s 93, Domestic Building Contracts Act2000 (Qld) s 77, s 82, sch 2, Queensland Building Services Authority Act 1991 (Qld) Ebber v Isager [1995] 1 Qd R 150, cited Johnson v Agnew [1980] AC 367, applied Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444, cited Onerati v Phillips Constructions Pty Ltd (in liq) (1989) 16 NSWLR 730, applied Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited Conquer v Boot [1928] 2 KB 336, cited
COUNSEL:	Mr M D Martin for the plaintiff Mr P H Morrison QC with Ms M J Luchich for the defendant
SOLICITORS:	DeVere Lawyers for the plaintiff Gadens Lawyers for the defendant