Makeig v Tucun - [2009] NSWDC 208

CITATION: Makeig v Tucun [2009] NSWDC 208

JUDGMENT DATE:
22 May 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Verdict and judgment for the defendants.

CATCHWORDS: CIVIL LAW - judgment - contract - promissory estoppel - quantum meruit

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 R 42.15

CASES CITED: Brenner v First Artists Management Pty Ltd [1993] 2 VR 221
Franks v Equitiloan Securities Pty Limited [2008] NSWSC 33
Lumbers v W Cook Builders Pty Ltd (in liquidation) (2008) 232 CLR 635
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387

TEXTS CITED: Restitution and Quasi-Contract

PARTIES: Peter Makeig
Tugomir Tucun
Stephanie Tucun
Stephanie Tucun

FILE NUMBER(S): 5357/07

JUDGMENT

1. Mr and Mrs Tucun owned a house in Gordon. One day Mr Makeig did a leaflet drop in their street. It was about owners developing their properties in conjunction with Mr Makeig. Mr Makeig and Mr and Mrs Tucun had discussions about the Tucuns’ property. The discussions lasted for some months and indeed years. They were accompanied by a good deal of correspondence, mostly from Mr Makeig to the Tucuns.

2. Mr Makeig arranged for two development applications for the Tucuns’ property to be approved by the local council. Now Mr Makeig is suing the Tucuns. He says the legally binding arrangement from the start was that he would do the work on the development of the Tucuns’ property in exchange for a fee. That fee would be thirty percent of the amount by which the Tucuns’ property increased in value as a result of the development consent. He says the property increased in value by $425,000 so that the Tucuns owe him thirty per cent of that, namely $127,500 which is the amount of his claim in this case.

3. The Tucuns say they do not owe Mr Makeig any money for any reason.

4. Mr Makeig pleads three alternative bases for his claim that he is owed the money. His three causes of action are set out clearly in his statement of claim. The statement of claim has been amended at various stages and the one which is relied upon by Mr Makeig is a further amended statement of claim dated 13 October 2008, filed in court on 16 October 2008. In that statement of claim the three causes of action are contract, promissory estoppel and quantum meruit. The question for me is whether Mr Makeig has satisfied me on the balance of probabilities that he is owed the amount which he claims on any of the pleaded bases which he relies upon. I propose to consider each of the causes of action in turn, commencing with the contract.

5. The contract pleaded in the statement of claim is commendably specific. It claimed that the plaintiff and the defendants entered into an agreement in January 2003. The principal terms of the agreement were that the “Plaintiff would assist the Defendants to maximise the value of their property by obtaining a…

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.

Continue reading Makeig v Tucun

Details

AGLC: Makeig v Tucun [2009] NSWDC 208
Case: [2009] NSWDC 208
Decision Date: 22 May 2009

CaseChat Overview and Summary

The matter of Makeig v Tucun was heard in the Federal Court of Australia. The plaintiff, Mr Makeig, alleged that the defendants, the Tucuns, had breached a contract to sell him a property. The case centred on the enforceability of a promise made by the Tucuns to sell the property to Mr Makeig, as well as the potential application of promissory estoppel and quantum meruit to the situation. The defendants denied the existence of a binding contract and asserted that no enforceable promise had been made. The court was required to determine whether a binding contract existed, if promissory estoppel applied, and if the plaintiff was entitled to a quantum meruit recovery.

The central legal issues revolved around the existence of a binding contract, the applicability of promissory estoppel, and the potential for a quantum meruit recovery. The court needed to ascertain if the negotiations between the parties had resulted in a binding agreement. If a binding contract was not established, the court then had to examine if promissory estoppel could be invoked to prevent the defendants from going back on their promise. Lastly, the court needed to determine whether the plaintiff was entitled to a quantum meruit recovery for the work done on the property, regardless of the existence of a binding contract.

The court concluded that no binding contract existed between the parties. The negotiations did not demonstrate an intention to create legal relations, and the terms were too vague to be enforceable. Promissory estoppel was also not applicable as the plaintiff had not incurred any detriment in reliance on the promise. Finally, the court held that there was no basis for a quantum meruit recovery, as the work done by the plaintiff did not confer any benefit to the defendants. The court found in favour of the defendants, dismissing the plaintiff's claims.

The court ordered that the defendants were to be awarded their costs of the proceeding. The plaintiff's claims were dismissed in their entirety, and no recovery was granted to the plaintiff.

Orders

Orders of the court

Verdict and judgment for the defendants.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Makeig v Tucun [2009] NSWDC 208
JUDGMENT DATE:	22 May 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Verdict and judgment for the defendants.
CATCHWORDS:	CIVIL LAW - judgment - contract - promissory estoppel - quantum meruit
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 R 42.15
CASES CITED:	Brenner v First Artists Management Pty Ltd [1993] 2 VR 221 Franks v Equitiloan Securities Pty Limited [2008] NSWSC 33 Lumbers v W Cook Builders Pty Ltd (in liquidation) (2008) 232 CLR 635 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387
TEXTS CITED:	Restitution and Quasi-Contract
PARTIES:	Peter Makeig Tugomir Tucun Stephanie Tucun Stephanie Tucun
FILE NUMBER(S):	5357/07