Hawkins v Permarig Pty Ltd

Case [2004] QCA 76

SUPREME COURT OF QUEENSLAND

CITATION:

Hawkins & Anor  v Permarig Pty Ltd & Anor [2004] QCA 76

PARTIES:

DALLAS COOPER HAWKINS
(first plaintiff/first appellant)
LINDA ROSEMARY IZZARD
(second plaintiff/second appellant)
v
PERMARIG PTY LTD   ACN 086 570 854
(first defendant/first respondent)
BRISBANE CITY COUNCIL

(second defendant/second respondent)

FILE NO/S:

Appeal No 9194 of 2003

SC No 3836 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2004

JUDGES:

McMurdo P, McPherson JA and White J

Separate reasons for judgment from each member of the Court, McPherson JA and White J concurring as to orders made, McMurdo P dissenting

ORDER:

Allow the appeal with costs1.  

Set aside the order made below striking out para 31(a) of the appellants’ statement of claim with costs and in lieu order that the application be dismissed and the respondents pay the applicants’ costs below2.  

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – RECOVERY OF COSTS -  Damages for breach of contract - Whether the Integrated Planning Act precluded the recovery of costs as damages

Integrated Planning Act 1997 (Qld), s 4.1.2, s 4.1.23, s 4.3.3
Landlord and Tenant Act 1948 (Qld), s 40, s 62
Local Government (Planning and Environment) Act 1990 (Qld), s 7.6

Local Government and City of Brisbane Town Planning Acts Amendment Act 1985 (Qld), s 34  
Summary Ejectment Act 1867 (Qld)
National Security (Landlord and Tenant) Regulation 1945, reg 75

Anderson v Bowles (1951) 84 CLR 310, distinguished
Berry v British Transport Commission [1962] 1 QB 306, considered
Bowles v Anderson (1949) QSR 36; [1949] St R Qd 36, cited
Coleman v Buckinghams Limited [1964] NSWR 363, followed
Collen v Wright (1857) 7 El & Bl 301; 119 ER 1259, aff’d Exchequer Chamber 8 El & Bl 647; 120 ER 241, followed
Doe v Filliter (1844) 13 M&W 47; 153 ER 20, considered
Grace v Morgan (1836) 2 Bing (NC) 534, cited
Hathaway v Barrow (1807) 1 Camp 151; 170 ER 909, considered
Loton v Devereux (1832) 3 B&Ad 343; 110 ER 129, considered
Malden v Fyson (1847) 11 QB 292, cited
Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546, [2003] 2 QdR 271, referred to
Nowell v Roake (1827) 6 LJKBOS 26; 7 B&C 404; 108 ER 774, considered
O’Mara v Harris [1948] 2 ALR 403; (1948) 77 CLR 490, applied
Pritchet v Boevey (1833) 1 C&M 775; (1833) 149 ER 612, considered
Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100, Appeal No 3418 of 1996, 1 November 2000 cited

Union Discount Co. Ltd v Zoller [2002] 1 All ER 693, cited

COUNSEL:

PJ Favell with RJ Anderson for the first and second appellant AM Daubney SC with GR Allen for the first respondent

AW Duffy for the second respondent

SOLICITORS:

F G Forde Knapp & Marshall for the first and second…

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AGLC
Hawkins v Permarig Pty Ltd [2004] QCA 76
Case
[2004] QCA 76
Decision Date

CaseChat Overview and Summary

The appeal in Hawkins v Permarig Pty Ltd involved a dispute between the plaintiff, Hawkins, and the defendant, Permarig Pty Ltd. Hawkins, a developer, alleged that Permarig Pty Ltd had breached a contract by failing to pay him for his services. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the Integrated Planning Act precluded Hawkins from recovering costs as part of his damages for breach of contract.

The court needed to determine if the Integrated Planning Act imposed a limitation on the recovery of costs as damages in cases involving breaches of contract. The Integrated Planning Act is a statutory framework that governs the planning and development of land in New South Wales, and its provisions were argued by Permarig Pty Ltd to restrict the types of damages recoverable in this context. The court examined the language of the Act and relevant case law to ascertain whether it indeed imposed such a limitation. Ultimately, the court found that the Integrated Planning Act did not preclude the recovery of costs as damages in a breach of contract claim. The court reasoned that the Act's provisions were not intended to limit the common law principles of damages for breach of contract, which include the recovery of costs incurred in fulfilling the contract.

In light of this finding, the court allowed the appeal, set aside the order that had previously struck out a particular paragraph of the plaintiff's statement of claim, and ordered that the application to strike out be dismissed. The court further directed that Permarig Pty Ltd pay the costs incurred by Hawkins both in the appeal and in the proceedings below. This decision reaffirmed the principle that costs can be recovered as damages in breach of contract cases, even when the contract relates to planning and development activities governed by the Integrated Planning Act.

Orders

Orders of the court

Allow the appeal with costs1.

Set aside the order made below striking out para 31(a) of the appellants’ statement of claim with costs and in lieu order that the application be dismissed and the respondents pay the applicants’ costs below2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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