Frumar v Guilfoyle Developments Pty Limited

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Frumar v Guilfoyle Developments Pty Limited [2014] NSWCA 225

Hearing dates:

4 February 2014

Decision date:

15 July 2014

Before:

Beazley P at [1];
Emmett JA at [101];
Bergin CJ in Eq at [109]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACTS - Variation of contractual relations - whether variation partly written and partly oral - whether variation written only - whether terms agreed

CONTRACTS - Variation of contractual relations - Agreements contemplating execution of formal document - Masters v Cameron

APPEAL - Interference with judge's findings of fact - where findings based on credibility of witness

Cases Cited:

Brambles v Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153
Eccles v Bryant [1948] Ch 93
Masters v Cameron [1954] HCA 72; 91 CLR 353

Category:

Principal judgment

Parties:

Geoffrey Craig Frumar (Appellant)
Guilfoyle Developments Pty Limited (Respondent)

Representation:

Counsel:
G A Sirtes SC; J P Knackstredt (Appellant)
M B J Lee SC; W V McManus (Respondent)
Solicitors:
Geoffrey C Frumar & Associates (Appellant)
Harris Freidman (Respondent)

File Number(s):

CA 2012/391409

 Decision under appeal 

Jurisdiction:

9111

Citation:

Guilfoyle Developments Pty Ltd v Geoffrey Craig Frumar [2012] NSWSC 859; [2012] NSWSC 1455

Date of Decision:

2012-12-10 00:00:00

Before:

Nicholas J

File Number(s):

2011/377547

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 November 2009, the appellant entered into a contract with the respondent for the purchase "off-the-plan" of a strata unit for $3.3 million (the contract). The respondent brought proceedings against the appellant claiming damages for breach of contract for failing to complete the contract pursuant to a notice given by the respondent. Nicholas J found in favour of the respondent, and awarded damages in the sum of $158,833.97 by way of liquidated damages.

The appellant appealed from his Honour's decision. At first instance and on appeal, the appellant pleaded that the parties had agreed to vary the contract in two respects. First, the appellant alleged that the completion date of the contract was extended to 30 April 2012 unconditionally (the first variation). Secondly, the appellant alleged that in consideration of waiving his right to rescind the contract pursuant to cl 40, the respondent had agreed to carry out additional fit-out works to the unit (the second variation).

The Court of Appeal dismissed the appeal.

Held by Beazley P (Emmett JA and Bergin CJ in Eq agreeing):

In respect of the first variation:

(1) The parties had reached an agreement to vary the contract by extending the sunset date and amending…