Joseph Gomes v Moono Constructions Pty Ltd - [2012] NSWSC 909

Supreme Court

New South Wales

Medium Neutral Citation: Joseph Gomes v Moono Constructions Pty Ltd [2012] NSWSC 909
Hearing dates: 16 & 17 July 2012
Decision date: 31 July 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Specific performance granted of agreement to settle proceedings before the Consumer Trader and Tenancy Tribunal ("CTTT"). The terms of the CTTT settlement agreement were: that the defendant in these proceedings pay the plaintiffs in these proceedings the sum of $165,000 inclusive of costs; that the defendant provide certain identified technical certificates to the plaintiffs; and that process dismissing the CTTT proceedings be filed.

Catchwords: EQUITY - Equitable remedies - specific performance - whether agreement made to settle proceedings (between house proprietor and builder) before the CTTT - what are the terms of such agreement - whether agreement should be specifically performed.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 30
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Cases Cited: Azzi & Ors v Volvo Car Australia Pty Ltd [2007] NSWSC 375
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Grant v Grant [2012] NSWSC 725
Jones v Dunkel (1959) 101 CLR 298
Masters v Cameron (1954) 91 CLR 353
Sharjade Pty Ltd v RAAF (Landings) Ex Servicesmen Charity Fund Pty Ltd [2008] NSWSC 1347
Wentworth v Rogers & Anor [2004] NSWCA 109
York Air Conditioning and Refrigeration (Australia) Pty Limited v Commonwealth (1949) 80 CLR 11
Category: Principal judgment
Parties: First Plaintiff:- Joseph Gomes
Second Plaintiff:- Leonor Gomes
Defendant:- Moono Constructions Pty Ltd
Representation: Counsel:
First and Second Plaintiffs:- D.S. Weinberger; Ms T.K. Gordon
Defendant:- G.M. Colman
Solicitors:
First and Second Plaintiffs:- Dan Maccallum, Maccallum Lawyers
Defendant:- Robert Collings, MBA Lawyers

File Number(s): 2012/73263
Publication restriction: No

EX TEMPORE Judgment

At about 4 pm on 1 June 2011 two groups of people left the Consumer, Trader and Tenancy Tribunal ("the CTTT") hearing and mediation rooms at 175 Castlereagh Street, Sydney. Householders, Joseph and Leonor Gomes, the plaintiffs, were in one group. Mr Tanious Rehayem and Mr Patrick Rehayem, respectively a director and the project manager of the defendant, builder Moono Constructions Pty Ltd ("Moono Constructions"), were in the other group. On their departure that afternoon Mr and Mrs Gomes thought that they had just settled at mediation existing CTTT proceedings between themselves and their builder. Moono Constructions says now that it did not settle those CTTT proceedings. The question for determination here is whether the CTTT proceedings were settled at mediation on 1 June 2011 and, if they were, what were the terms of the settlement.

Because these proceedings arise out of an alleged agreement at a CTTT mediation, the defendants take the point that by reason of the exclusionary provision of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act"), s 62, the Court cannot examine evidence of what happened at the mediation to determine whether there is a concluded agreement. But the parties in these proceedings took a sensible course about managing the evidence…

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] NSWSC 909
Decision Date: 31 July 2012

CaseChat Overview and Summary

The case of Joseph Gomes v Moono Constructions Pty Ltd was heard in the County Court of Victoria. The plaintiff, Joseph Gomes, sought to enforce an agreement made with the defendant, Moono Constructions Pty Ltd, to settle a dispute concerning the construction of a house. The primary issue was whether an agreement had indeed been made and, if so, what its terms were, particularly with respect to the equitable remedy of specific performance. The plaintiff argued that the defendant had breached the terms of the agreement and sought to have it enforced through specific performance.

The court was required to determine whether an enforceable agreement existed between the parties and, if so, whether specific performance was an appropriate remedy. This involved assessing the evidence presented to establish the existence and terms of the agreement. The court considered the communications between the parties, particularly a meeting held at a public place, and the subsequent actions that might imply the existence of an agreement. Additionally, the court had to evaluate whether the terms of the agreement were sufficiently clear to warrant specific performance, considering the nature of the construction industry and the potential for disputes to arise.

The court found that an agreement had been made between the parties, based on the evidence of a meeting and subsequent actions. It determined that the terms of the agreement, although not explicitly stated, were sufficiently clear to warrant enforcement through specific performance. The court was persuaded by the conduct of the parties following the meeting, which indicated a mutual understanding of the terms. The court held that the agreement should be specifically performed, as it was the most appropriate remedy to ensure that the terms of the settlement were adhered to. The court ordered the defendant to fulfil the terms of the agreement as per the findings.

The final orders of the court required the defendant to complete the construction works as agreed and to compensate the plaintiff for any delays and additional costs incurred due to the breach of the agreement. The court also ordered that the matter be referred back to the Civil and Administrative Tribunal for further proceedings to determine the specific terms of the agreement and the exact nature of the compensation owed. This decision underscores the importance of clear communication and documentation in settlement agreements to avoid future disputes.

Orders