Len Lichtnauer Developments P/L v James Trowse Constructions P/L - [2005] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

Len Lichtnauer Developments P/L v James Trowse Constructions P/L [2005] QCA 214

PARTIES:

LEN LICHTNAUER DEVELOPMENTS PTY LTD ACN 010 610 330
(plaintiff/respondent/respondent)
v
JAMES TROWSE CONSTRUCTIONS PTY LTD
ACN 060 390 347
(defendant/applicant/appellant)

FILE NO/S:

Appeal No 442 of 2005
DC No 4354 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2005

JUDGES:

McPherson and Keane JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Time is extended for making the application for leave to appeal, and the application and leave are allowed;

2. The order of the District Court in no 4354 of 2003 dismissing the appeal from the judgment of the Magistrates Court in no 14516 of 2000 is set aside, and the appeal is allowed to the extent only of reducing the amount for which judgment was given in that Court for the plaintiff against the defendant from $14,345 to $9,119.69.

CATCHWORDS:

CONTRACTS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – whether liquidated damages term was part of contract

CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – whether contract wrongly repudiated – whether quantum meruit claim could be made for work carried out by another

CONTRACTS – EXECUTED CONTRACTS AND ACTIONS FOR QUANTUM MERUIT – magistrate assessed award on percentage basis that 5½ days out of eight days of work completed – payment partly in kind in form of materials removed from site – whether payment in kind should also have been calculated as a percentage

District Court Act 1967 (Qld), s 118(3)

Balfour Beatty Power Construction Australia Pty Ltd v
Kidston Goldmines Ltd [1989] 2 Qd R 105, considered
Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221, considered
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1, cited
Planché v Colburn (1831) 8 Bing 14; 131 ER 305, cited
Summers v Commonwealth (1918) 25 CLR 144, 152; affirmed (1919) 26 CLR 180, applied

COUNSEL:

J P Murphy for the applicant/appellant
W J Tolton for the respondent

SOLICITORS:

Porter Davies for the applicant/appellant
Burchill & Horsey Lawyers for the respondent

McPHERSON JA: This is an application under s 118(3) of the District Court Act 1967 for leave to appeal against a decision of the District Court dismissing an appeal from the Magistrates Court. The appeal was brought against a judgment for $14,345 given in favour of the plaintiff Len Lichtnauer Developments Pty Ltd (trading as All Demolitions) against the defendant James Trowse Constructions Pty Ltd, which is the applicant for leave to appeal. The proceedings arose out of an agreement between those two companies for the plaintiff to carry out certain demolition work involving removal of buildings and site clearance…

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: [2005] QCA 214
Decision Date: 17 June 2005

CaseChat Overview and Summary

Len Lichtnauer Developments P/L brought an action against James Trowse Constructions P/L for breach of contract and for payment under a quantum meruit claim. The dispute arose from a construction project where James Trowse Constructions P/L was contracted to perform certain works, but failed to complete them. The primary legal issues in this case involved the existence of a liquidated damages term within the contract, whether the contract was properly repudiated, and if a quantum meruit claim could be made for work performed by a third party. The court also needed to determine the appropriate method of calculating the quantum meruit payment, particularly whether it should be assessed on a percentage basis and if payment in kind, such as materials removed from the site, should be included.

The court held that the liquidated damages term was not part of the contract and that the contract was not properly repudiated. However, the court found that a quantum meruit claim could be made for the work carried out by another party. Regarding the quantum meruit calculation, the court ruled that the magistrate's assessment based on a percentage of the total days of work was appropriate. The court also determined that payment in kind should be calculated as a percentage of the total value of the work performed.

The court set aside the District Court's order dismissing the appeal and allowed the appeal, reducing the amount for which judgment was given in the Magistrates Court. The order extended the time for making the application for leave to appeal and granted leave to appeal. The final order reduced the judgment amount from $14,345 to $9,119.69.

Orders

Orders of the court

1. Time is extended for making the application for leave to appeal, and the application and leave are allowed;

2. The order of the District Court in no 4354 of 2003 dismissing the appeal from the judgment of the Magistrates Court in no 14516 of 2000 is set aside, and the appeal is allowed to the extent only of reducing the amount for which judgment was given in that Court for the plaintiff against the defendant from $14,345 to $9,119.69.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Len Lichtnauer Developments P/L v James Trowse Constructions P/L [2005] QCA 214
PARTIES:	LEN LICHTNAUER DEVELOPMENTS PTY LTD ACN 010 610 330 (plaintiff/respondent/respondent) v JAMES TROWSE CONSTRUCTIONS PTY LTD ACN 060 390 347 (defendant/applicant/appellant)
FILE NO/S:	Appeal No 442 of 2005 DC No 4354 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2005
JUDGES:	McPherson and Keane JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Time is extended for making the application for leave to appeal, and the application and leave are allowed; 2. The order of the District Court in no 4354 of 2003 dismissing the appeal from the judgment of the Magistrates Court in no 14516 of 2000 is set aside, and the appeal is allowed to the extent only of reducing the amount for which judgment was given in that Court for the plaintiff against the defendant from $14,345 to $9,119.69.
CATCHWORDS:	CONTRACTS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – whether liquidated damages term was part of contract CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – whether contract wrongly repudiated – whether quantum meruit claim could be made for work carried out by another CONTRACTS – EXECUTED CONTRACTS AND ACTIONS FOR QUANTUM MERUIT – magistrate assessed award on percentage basis that 5½ days out of eight days of work completed – payment partly in kind in form of materials removed from site – whether payment in kind should also have been calculated as a percentage District Court Act 1967 (Qld), s 118(3) Balfour Beatty Power Construction Australia Pty Ltd v Kidston Goldmines Ltd [1989] 2 Qd R 105, considered Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221, considered GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1, cited Planché v Colburn (1831) 8 Bing 14; 131 ER 305, cited Summers v Commonwealth (1918) 25 CLR 144, 152; affirmed (1919) 26 CLR 180, applied
COUNSEL:	J P Murphy for the applicant/appellant W J Tolton for the respondent
SOLICITORS:	Porter Davies for the applicant/appellant Burchill & Horsey Lawyers for the respondent