Leduva Pty Ltd v NM Structural Engineering Pty Ltd - [2010] NSWSC 1164

CITATION: Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164

HEARING DATE(S): 13 October 2010

JUDGMENT DATE :
22 October 2010

JUDGMENT OF: Garling J

DECISION: Appeal dismissed with costs.

CATCHWORDS: APPEAL – Appeal from Local Court of NSW – Appeal by way of rehearing – Whether leave to appeal on questions of mixed fact and law –– Whether matters the subject of the appeal are matters of fact, mixed fact and law, or of law – Obligation for Magistrate to provide adequate reasons. - PRACTICE AND PROCEDURE – Whether plaintiff’s pleadings in the Local Court were adequate – Purpose of pleadings and particulars – Whether the defendant in the Local Court knew the nature and extent of allegations made against it – Where the defendant did not object to the adequacy of the plaintiff’s pleadings until its written submissions made ten weeks after the conclusion of trial. - CONTRACTS – Whether there was sufficient evidence before the Magistrate to find the existence of an agreement in the terms set out in a written fee proposal – Clause in the agreement provided for termination payments in lieu of notice – Whether clause is penal. - BUILDING AND CONSTRUCTION – Whether consultant engineer was entitled to a variation under the agreement – Whether there was sufficient evidence before the Magistrate to find that there had in fact been a variation to the agreement .

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Environmental Planning & Assessment Act 1979
Local Court Act 2007
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Abdel Naser Qushair v Naji Raffaul [2009] NSWCA 329
AME-UDC Finance Ltd v Austin (1986) 162 CLR 170
Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126
Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290
Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126
Dare v Pulham (1982) 148 CLR 658
Dunlop Nematic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Pettitt v Dunkley [1971] 1 NSWLR 376
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Public Service Board of NSW v Osmond (1986) 159 CLR 656
RL & D Investments Pty Ltd v Bisby (2002) NSWSC 1082
Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656
Sims v Wran [1984] 1 NSWLR 317
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
US Manufacturing Co Pty Limited v ABB Service Pty Ltd [2008] NSWSC 705

PARTIES: Leduva Pty Limited (Plaintiff)
NM Structural Engineering Pty Ltd (Defendant)

FILE NUMBER(S): SC 2010/076638

COUNSEL: C. Gleeson (Plaintiff)
S. Philips (Defendant

SOLICITORS: Sachs Gerace Lawyers (Plaintiff)
Self-represented (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 3353/2008

LOWER COURT JUDICIAL OFFICER : Magistrate Madgwick

LOWER COURT DATE OF DECISION: 26 February 2010

IN THE SUPREME COURT
OF NEW…

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.

Keep reading for free

Create a free CaseChat account to read Leduva Pty Ltd v NM Structural Engineering Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 1164
Decision Date: 22 October 2010

CaseChat Overview and Summary

Leduva Pty Ltd (Plaintiff) appealed to the Supreme Court of New South Wales against a decision of the Local Court (Defendant: NM Structural Engineering Pty Ltd). The original matter involved a dispute over contractual obligations and variations in the context of a building project. The plaintiff sought to recover costs incurred due to variations in the scope of work, while the defendant argued against the existence of such variations and the validity of the terms of the contract, including a termination clause.

The court was tasked with determining whether the plaintiff's pleadings in the Local Court were adequate, whether the matters subject to the appeal were of fact, mixed fact and law, or of law, and if there was sufficient evidence to support the Magistrate's findings regarding the existence of a contract and the occurrence of variations. Additionally, the court examined whether the termination clause in the contract was penal, and if the defendant was entitled to a variation under the agreement.

The court found that the plaintiff's pleadings were adequate as the defendant did not object to them until ten weeks after the trial. It was held that the matters subject to the appeal were of mixed fact and law, which necessitated a rehearing. The court concluded that there was sufficient evidence to support the Magistrate's finding that an agreement existed in the terms of the written fee proposal, and that variations had been made to the agreement. The termination clause was not considered penal, and the defendant was found not to be entitled to a variation under the agreement.

The appeal was dismissed, and the original decision of the Local Court was upheld. The court found that the plaintiff's pleadings were adequate and that there was sufficient evidence to support the findings made by the Magistrate. The clause in the agreement providing for termination payments in lieu of notice was not deemed penal, and the defendant's claim for a variation was dismissed.

Orders