Hardinge v Schidor

Case [2002] NSWCA 277

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Hardinge & 1 Ors v Schidor & 1 Ors [2002]  NSWCA 277

FILE NUMBER(S):
40167/01

HEARING DATE(S):    4 March 2002

JUDGMENT DATE:      22/08/2002

PARTIES:
Biron Hardinge (also known as Bill Hardinge)  (First Appellant)
Radio Masts (Aust) Pty Ltd (ACN 006 113 926)  (Second Appellant)
Gert Schidor  (First Respondent) 
Gert Schidor Design Pty Limited (ACN 003 082 217)  (Second Respondent) 

JUDGMENT OF:        Mason P Powell JA Santow JA   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     4512/00

LOWER COURT JUDICIAL OFFICER:   Goldring DCJ

COUNSEL:
M W Young  (Appellants)
M R Aldridge, SC/C Whitelaw  (Respondents)

SOLICITORS:
Tsolakis Solicitors  (Appellants)
Dominic David Stamfords  (Respondents)

CATCHWORDS:
PRACTICE AND PROCEDURE - District Court Rules - application for removal of a defendant from District Court proceedings as not a party to agreement that is the basis of the dispute
CONTRACT - construction and interpretation of contract - principal and agent
CONTRACT - construction and interpretation - ambiguity - admission of extrinsic evidence - parole evidence rule
CORPORATIONS - contracts - agency - joint and several liability

LEGISLATION CITED:
District Court Act 1973 (NSW) is Pt 9 r17; s161(2)(i)
District Court Rules Pt 7 r9; Pt 11A r3
Supreme Court Rules Pt 8 r9

DECISION:
1.  Appeal dismissed with costs
2.  That Gert Schidor cease to be a party to District Court proceedings 4512 of 2000;  thus varying the orders of Goldring DCJ made 23 February 2001. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40167/01
DC 4512/00

MASON P
POWELL JA
SANTOW JA

22 AUGUST 2002

Biron HARDINGE (also known as Bill Hardinge), and RADIO MASTS (Aust) PTY LTD
-  v  -
Gert SCHIDOR, and GERT SCHIDOR DESIGN PTY LIMITED

HEADNOTE

The Appellants, Mr Biron Hardinge (Mr Hardinge) and Radio Masts (Aust) Pty Limited (Radio Masts), commenced proceedings for damages for breach of contract against, the Respondents, Mr Gert Schidor (Mr Schidor) and Gert Schidor Designs Pty Limited (Designs) in the District Court of NSW.  The contract in question was for the hire of a bus on specified terms.  The Respondents by Amended Notice of Motion sought to have Mr Schidor removed as a party to the proceedings under District Court Rules Pt7 r9 or Pt9 r17 on the grounds that he was not a party to the contract. At first instance Goldring DCJ of the District Court NSW allowed the Amended Notice of Motion and ordered that the proceedings be struck out against the First Respondent.

Mr Hardinge and Radio Masts appealed. 

HELD: 

Per Powell JA with Mason P agreeing, Santow JA dissenting: 

1.The appeal should be dismissed. Designs was the party to the agreement to hire the bus from Mr Hardinge and Radio Masts. Mr Schidor, as an individual was not a party to the agreement. 

2.The terms of the agreement did not indicate that Mr Schidor alone was the hirer of the bus and the extrinsic evidence indicated that it was Designs rather than Mr Schidor who hired…

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Details
AGLC
Hardinge v Schidor [2002] NSWCA 277
Case
[2002] NSWCA 277
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from orders made in the District Court of New South Wales. The Appellants sought to have both Gert Schidor and his company, Gert Schidor Design Pty Limited, remain liable under a contract that formed the basis of the dispute. Mr. Schidor had applied to be removed as a party to the proceedings, arguing he was not a party to the agreement.

The central legal issues before the court were whether extrinsic evidence was admissible to determine if Mr. Schidor was a party to the agreement, and consequently, whether the proceedings against him and his company should be struck out. The court also considered the proper application of the District Court Rules concerning the removal of parties and the admission of evidence.

The court reasoned that the agreement in question contained sufficient ambiguity regarding Mr. Schidor's personal involvement to permit the admission of extrinsic evidence. This evidence was crucial in determining his liability under the contract. While the trial judge had the power to make orders striking out proceedings against a party, the appellate court found that this power had been misapplied. The court concluded that the proceedings against the company, Gert Schidor Design Pty Limited, should have been struck out, not those against Mr. Schidor personally.

Consequently, the appeal was allowed in part. The orders of the District Court striking out the proceedings against Mr. Schidor and awarding him costs were set aside. Instead, the proceedings against Gert Schidor Design Pty Limited were struck out, and the respondents were ordered to pay the appellants' costs.

Orders

Orders of the court

1. Appeal dismissed with costs

2. That Gert Schidor cease to be a party to District Court proceedings 4512 of 2000; thus varying the orders of Goldring DCJ made 23 February 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It remains for me to deal with the Appellants’ contention that there is no basis under the relevant District Court Rules for the admission of this extrinsic evidence. I would accept rather the Respondents’ contention that such evidence is properly admissible, whether or not the Rules expressly permit such evidence, as does Pt 9 r17 in r17(2) and Pt 11A r3. Given the substance of the application was removal of a party as defendant in proceedings brought upon a contract, the question is simply whether the Agreement admits of sufficient ambiguity as to permit the introduction of that extrinsic evidence. It clearly does. This is insofar as it bears upon whether the then applicant (the First Respondent Gert Schidor) was indeed a party to the Agreement, thereby capable of being rendered liable as such.OVERALL CONCLUSION The Appellants should succeed upon their appeal on the basis that the trial judge should not have granted the original application by Mr Gert Schidor, the First Respondent to these proceedings, to be removed as a party. However, the Appellants fail on their alternative submission that both Mr Schidor and his company Gert Schidor Design Pty Limited, remain liable under the Agreement. Only Mr Schidor remains so liable. The trial judge did not err in admitting into evidence the affidavit of Mr Gert Schidor dated 19 December 2000 and its annexures in resolving any ambiguity in the Agreement for the purpose of determining the application before him. The trial judge had power by reference to Pt7 r9, supplemented as necessary by Pt 9 r17 and Pt 11A r3, to make orders striking out the proceedings against the First Respondent but should not have done so in the circumstances; rather he should have struck out the proceedings against the Second Respondent. The Appellants may need to replead in consequence. As to the above cost order, I have given consideration to whether costs in the court below and this Court should have instead become costs in the cause. However, the Appellants have substantially succeeded in these proceedings. In all the circumstances I would not wish to depart from the ordinary rule that costs should follow the event, given that the original application must be set aside. ORDERS The consequence of that conclusion is that I would make orders as follows: (a)the orders of Goldring DCJ made on 23 February 2001 in District Court proceedings, matter number 4512 of 2000: (i)striking out the proceedings against the First Respondent; and(ii)ordering that the Appellants pay the First Respondent’s costs; be set aside. (b)the proceedings against the Second Respondent in the District Court proceedings be struck out; and (c)the Respondents to pay the Appellants’ costs and, if qualified, have a certificate under the Suitor’s Fund Act 1951. **********

Ratio Decidendi

Legal Principle Established

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