James Woodward Neale v Ancher Mortlock and Woolley Pty Ltd

[2014] HCASL 171

JAMES WOODWARD NEALE

v

ANCHER MORTLOCK AND WOOLLEY PTY LTD

[2014] HCASL 171
S94/2014

1. The respondent commenced proceedings in the District Court of New South Wales, seeking an order that the applicant pay the outstanding portion of contract fees following the termination of a contract between them for the provision of architectural services.  On 6 December 2012, Curtis DCJ ordered the applicant to pay the outstanding fees, and rejected a cross-claim by the applicant that the respondent had breached a duty of competence in its performance of the contract.

2. On 24 March 2014, the Court of Appeal of the Supreme Court of New South Wales (Barrett, Gleeson and Leeming JJA) dismissed the applicant's appeal from the decision of Curtis DCJ. Under the contract, 40 per cent of the total contract fees were payable to the respondent "within 8 weeks of EA approval".  Two members of the Court of Appeal held that, properly construed, this provision concerned only the timing of payment, as distinct from the creation of indebtedness.  As the relevant work had been completed by the respondent, the outstanding portion of fees became payable when the contract was terminated.  As an alternative basis for holding that the fees were payable, all members of the Court of Appeal found that EA approval had been granted more than 8 weeks before the contract was terminated.  The Court of Appeal also dismissed the applicant's appeal on the cross-claim, holding that the applicant had not established that the respondent had breached a contractual duty or duty of care in negligence in carrying out the work.

3. The applicant requires an extension of time in which to bring his application for special leave to appeal to this Court.  The applicant's draft notice of appeal does not identify any error in the decision of the Court of Appeal, nor is there any reason to doubt that decision. There would be no utility in granting the applicant an extension of time since special leave should be refused.

4. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
11 September 2014 P.A. Keane