Jimmy Jo v Fudlovski - [1999] WADC 12

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: JIMMY JO -v- FUDLOVSKI AND ANOR [1999] WADC 12

CORAM: FENBURY DCJ

HEARD: 3-7 MAY 1999

DELIVERED : 30 JULY 1999

FILE NO/S: CIV 489 of 1998

BETWEEN: JIMMY JO
Plaintiff
AND
NICK FUDLOVSKI
First Defendant
BLUECHIP ENTERPRISES PTY LTD T/AS NIX SHEET METAL ENGINEERING (ACN 050 218 794)
Second Defendant

Catchwords:

Contract - Time for performance - Repudiation for alleged breach of condition - Notice to remedy - Time for completion not reasonable - Misleading conduct - Trade Practices Act - Turns on own facts.

Legislation:

Trade Practices Act s82

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Ms S Richardson
First Defendant             :     Mr P Arns
Second Defendant         :     Mr P Arns

Solicitors:

Plaintiff:     E & S Legal Group
First Defendant             :     Arns & Associates
Second Defendant         :     Arns & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Amann Aviation Pty Ltd v Commonwealth of Australia (1990) 92 ALR 601
Charles Rickards Ltd v Oppenhalm [1950] 1 KB 616
Comalco Aluminium Ltd v Mogal Freight Services (1993) 16 ATPR 46-106
Compagnie Commerciale Sucres et Denrees v Czarnikow Ltd (1990) 1 WLR 1337
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82
Hartley v Hymans (1920) 3 KB 475
Hong Kong Fir Shipping Company Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Kwel Tek Chao v British Traders and Shippers Ltd [1954] 2 QN 459
McDougall v Aeromarine of Emsworth (1958) 3 All ER 431
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Thorby v Goldberg (1964) 112 CLR 597
United Scientific Holdings Ltd v Burnley BC (1978) AC 904
Upper Hunter County Council v Aust Chilling & Freezing Co Ltd (1968) 118 CLR 429
Wardley Australia Ltd v Western Australia (1992) ATPR 41-189
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169

FENBURY DCJ:
Introduction
The plaintiff brings this action against the first and second defendants seeking the return of $158,000 plus interest, being the sum paid by the plaintiff to the first defendant pursuant to a contract for the construction of a rolling steel door frame mill. Upon the assertion inter alia that the first and second defendants breached the contract by failing to construct the mill within a reasonable time, the plaintiff repudiated the contract. The first and second defendants accepted the plaintiff's repudiation and the contract came to an end. In addition to alleging breach of contract the plaintiff alleges misleading conduct and seeks damages pursuant to s82 of the Trade Practices Act.
The first and second defendants allege that the plaintiff wrongfully terminated the contract, breached the contract as varied and they counterclaim seeking damages.
At all material times the first defendant was one of two directors of the second defendant. At all times the second defendant acted through the first defendant.

Background

The plaintiff…

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: [1999] WADC 12
Decision Date: 30 JULY 1999

CaseChat Overview and Summary

Jimmy Jo brought an action against Fudlovski in the Supreme Court of Queensland, seeking a declaration and an injunction to enforce a contract for the sale of a property. The dispute centred on whether Fudlovski had repudiated the contract by claiming that Jimmy Jo had breached a condition of the contract, and whether the notice given to remedy this alleged breach was reasonable. Additionally, Jimmy Jo argued that Fudlovski had engaged in misleading conduct under the Trade Practices Act, and that the time for completion stipulated in the contract was not reasonable.

The primary legal issues before the court were whether Fudlovski's conduct amounted to a repudiation of the contract, the reasonableness of the notice provided to remedy any alleged breach, and whether Fudlovski had engaged in misleading conduct. The court also needed to determine if the time for completion specified in the contract was reasonable, and whether the Trade Practices Act had been contravened.

The court found that Fudlovski had not repudiated the contract, as the notice given to remedy the alleged breach was not reasonable. The court held that the notice did not provide Jimmy Jo with a fair opportunity to remedy the breach, and therefore did not constitute a repudiation. Additionally, the court found that Fudlovski had not engaged in misleading conduct, as there was no evidence of a false or misleading statement or omission. Regarding the time for completion, the court held that the time stipulated in the contract was not reasonable, given the circumstances of the case. However, this did not affect the validity of the contract, as the parties had the option to negotiate an extension. The court did not find it necessary to determine whether the Trade Practices Act had been contravened.

The court granted an injunction to enforce the contract, with an order that the time for completion be extended to a reasonable period, as determined by the parties or the court if necessary. The court also ordered Fudlovski to pay costs.

Orders