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Grave v Blazevic Holdings Pty Ltd

Grave v Blazevic Holdings Pty Ltd

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Case Copied 12 October 2012 36 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Grave v Blazevic Holdings Pty Limited [2012] NSWCA 329
Hearing dates: 26 September 2012
Decision date: 12 October 2012
Before: Campbell JA at [1]
Barrett JA at [7]
Bergin CJ in Eq at [8]
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: [CONTRACT] - whether parties entered into binding agreement - whether Deed of Release drafted by Appellant's solicitors reflected a binding agreement - whether agreement subject to execution of the Deed
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Civil Procedure Act 2005
Supreme Court Act 1970
Cases Cited: Ahmed v Chowdhury [2011] NSWSC 893
Blazevic Holdings Pty Limited v Warwick S Grave [2011] NSWSC 287
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Chinnock v The Marchioness of Ely (1865) 4 De. G. J. & S. 638; 46 E.R. 1066
Cleary v Masterton [1999] NSWSC 207
Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510
Fine Real Estate Network Pty Ltd v Howell (No 2) (Supreme Court of New South Wales, Young J, 9 December 1997 unreported)
Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324
Green v Rozen [1955] 1 WLR 741
Humphris-Clark v Lazaridis [2010] NSWSC 318
McCallum v Country Residences Ltd [1965] 1 WLR 657
Masters v Cameron (1954) 91 CLR 353
Phillips v Walsh (1990) 20 NSWLR 206
Roberts v Gippsland Agricultural & Earth Moving Contracting Company Pty Ltd [1956] VLR 555
Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310
Category: Principal judgment
Parties: Warwick S Grave (Appellant)
Blazevic Holdings Pty Limited (ACN 106 372 123) (Respondent)
Representation: Mr T Lynch (Appellant)
Bridges Lawyers (Appellant)
Dibbs Barker Lawyers (Respondent)

File Number(s): 2009/332394
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9111

Citation:

[2011] NSWSC 287

Date of Decision:

2011-05-06 00:00:00

Before:

Nicholas J

File Number(s):

2009/324672

Judgment

CAMPBELL JA: I agree with the orders proposed by Bergin CJ in Eq, and with her Honour's reasons.

There is an additional reason for rejecting the sixth of the Appellant's submissions.

Prior to the enactment of the Civil Procedure Act 2005 there had been a live question concerning whether s 63 of the Supreme Court Act 1970 enabled the Court to use the procedural vehicle of a notice of motion filed in proceedings to decide the question of whether those proceedings themselves had been settled: Green v Rozen [1955] 1 WLR 741; McCallum v Country Residences Ltd [1965] 1 WLR 657 cfRoberts v Gippsland Agricultural & Earth Moving Contracting Company Pty Ltd [1956] VLR…

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] NSWCA 329
Decision Date: 12 October 2012

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Grave, and the respondent, Blazevic Holdings Pty Ltd, regarding the existence of a binding agreement. The primary issue was whether a Deed of Release, drafted by the appellant's solicitors, constituted a binding agreement between the parties, or if it remained subject to the formal execution of the Deed. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the parties had entered into a binding agreement, notwithstanding the fact that a formal Deed of Release had not been executed. Specifically, the court had to consider whether the terms of the draft Deed of Release, as prepared by the appellant's solicitors, reflected a concluded agreement that was intended to be binding upon the parties, or if the agreement was contingent upon the formal execution of that Deed.

The Court of Appeal dismissed the appeal, upholding the decision of the lower court. The reasoning of the court focused on the intention of the parties at the time the draft Deed was prepared and circulated. The court found that the circumstances indicated that the parties did not intend to be bound until the Deed was formally executed. The legal principle applied was that an agreement, even if terms are settled, may be rendered non-binding if the parties clearly indicate that their intention is not to be bound until a formal document is executed. The appeal was dismissed with costs.

Orders

Orders of the court

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.]

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

BERGIN CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BERGIN CJ

Full text does not contain this section.

Medium Neutral Citation:	Grave v Blazevic Holdings Pty Limited [2012] NSWCA 329
Hearing dates:	26 September 2012
Decision date:	12 October 2012
Before:	Campbell JA at [1] Barrett JA at [7] Bergin CJ in Eq at [8]
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:	[CONTRACT] - whether parties entered into binding agreement - whether Deed of Release drafted by Appellant's solicitors reflected a binding agreement - whether agreement subject to execution of the Deed
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 Supreme Court Act 1970
Cases Cited:	Ahmed v Chowdhury [2011] NSWSC 893 Blazevic Holdings Pty Limited v Warwick S Grave [2011] NSWSC 287 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Chinnock v The Marchioness of Ely (1865) 4 De. G. J. & S. 638; 46 E.R. 1066 Cleary v Masterton [1999] NSWSC 207 Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 Fine Real Estate Network Pty Ltd v Howell (No 2) (Supreme Court of New South Wales, Young J, 9 December 1997 unreported) Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324 Green v Rozen [1955] 1 WLR 741 Humphris-Clark v Lazaridis [2010] NSWSC 318 McCallum v Country Residences Ltd [1965] 1 WLR 657 Masters v Cameron (1954) 91 CLR 353 Phillips v Walsh (1990) 20 NSWLR 206 Roberts v Gippsland Agricultural & Earth Moving Contracting Company Pty Ltd [1956] VLR 555 Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310
Category:	Principal judgment
Parties:	Warwick S Grave (Appellant) Blazevic Holdings Pty Limited (ACN 106 372 123) (Respondent)
Representation:	Mr T Lynch (Appellant) Bridges Lawyers (Appellant) Dibbs Barker Lawyers (Respondent)
File Number(s):	2009/332394
Publication restriction:	Nil
Decision under appeal	Jurisdiction: 9111 Citation: [2011] NSWSC 287 Date of Decision: 2011-05-06 00:00:00 Before: Nicholas J File Number(s): 2009/324672