GK Structures Pty Ltd v Bencic - [2012] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GK STRUCTURES PTY LTD v BENCIC
[2012] SADC 157
Judgment of His Honour Judge Brebner
23 November 2012
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE - CONTRACT IMPLIED FROM CONDUCT OF PARTIES
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
The plaintiff claimed that there was a verbal agreement between the parties - defendant denied the existence of any such agreement - plaintiff further claimed that the agreement had been reduced to writing and forwarded to the defednant and that the defendant had accepted the terms of the agreement by his conduct - plaintiff finally claimed that the terms of the agreement rendered the defendant liable in a liquidated amount - credibility in issue.
Held: Credibility issues determined in favour of the plaintiff - plaintiff's case consistent with the inherent probabilities of the overall situation - defendant accepted terms by conduct - terms of the agreement rendered defendant liable in the amount claimed.
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; Barrier Wharfs Ltd v W Scott Fell and Co Ltd (1908) 5 CLR 647; Seven Cable Television Pty Ltd v Telstra Corporation Ltd (1995) 171 ALR 89; Bell Group Ltd v Westpac Banking Corporation (No 9) (2008) 225 FLR 1; Profile Events Pty Ltd v West Beach Trust [2011] SASCFC 1; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Fox v Percy (2003) 214 CLR 118; Hagicostas v Adelaide United Soccer Club [2008] SADC 178; RPS v The Queen (2000) 199 CLR 620; Jones v Dunkel (1959) 101 CLR 298; Federick v The State of South Australia (2006) 94 SASR 545; Toll (FCGT) P/L v Alphapharm P/L (2004) 219 CLR 165; Empirnall Holdings Pty Ltd v Machon Paull Partners Ltd (1988) 14 NSWLR 523, considered.

GK STRUCTURES PTY LTD v BENCIC
[2012] SADC 157

This is a claim in contract and, in the alternative, a claim for payment for work performed and materials supplied.
Introduction
The plaintiff, GK Structures (GK), is a civil engineering company. It undertakes concreting and other construction work. It is duly incorporated. A Mr Christopher Wilkes is the principal of GK. He is its sole director and secretary. He is a licensed builder. For practical purposes he is the plaintiff. Sometimes. The defendant, Mr Walter Bencic, is, amongst other things, a supplier of concrete.
The defendant lives and works at the rural town of Orroroo some 250 kilometres north of Adelaide. In 2008 he successfully tendered to the District Council of Orroroo and Carrieton (the council) for the construction of a number of concrete walls in creek beds adjacent to some of the roads within the council district. The project was referred to in evidence as “the Orroroo job”, or simply “the job” and I will also refer…

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] SADC 157
Decision Date: 23 November 2012

CaseChat Overview and Summary

GK Structures Pty Ltd sued Bencic over an alleged verbal agreement. The defendant denied the existence of such an agreement. The plaintiff further argued that the agreement had been formalised in writing and sent to the defendant, who accepted the terms through his conduct. The plaintiff claimed that these terms made the defendant liable for a specific liquidated sum. The credibility of both parties was in question.

The court had to determine whether there was indeed a verbal agreement between the parties, and if so, whether the defendant had accepted the terms by conduct. The court also had to interpret the terms of the agreement to see if they indeed made the defendant liable for the sum claimed. Credibility played a significant role in these determinations.

The court found in favour of the plaintiff, determining that the plaintiff's case was consistent with the inherent probabilities of the overall situation. The court held that the defendant had accepted the terms of the agreement through his conduct. The court further held that the terms of the agreement made the defendant liable for the liquidated sum claimed by the plaintiff.

No further orders were made.

Orders