Mareva Building Consultants v Zevon - [2013] ACTCA 28

MAREVA BUILDING CONSULTANTS v HARRY ZEVON AND VIDA ZEVON
[2013] ACTCA 28 (12 July 2013)

APPEAL AND NEW TRIAL – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – contract for the construction of a house – whether contract abandoned – whether mutual consensus existed between the parties that the contract not be performed – whether the conduct of the parties manifested a mutual intention – facts of case inconsistent with claim that contract remained on foot – whether contract discharged by agreement – no error in trial judge’s findings on abandonment renders argument in alternative moot – appeal dismissed

APPEAL AND NEW TRIAL – CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – contract for the construction of a house – conditional abandonment – whether trial judge erred in failing to conclude that any abandonment or discharge was conditional upon the appellant building a different house for the respondent – conduct inconsistent with the condition alleged – appeal dismissed

APPEAL AND NEW TRIAL – JURISDICTION, PRACTICE AND PROCEDURE – PLEADINGS – failure by respondent to plead abandonment or discharge: Court Procedures Rules 2006 (ACT), r 407 – no prejudice to the appellant for the respondent’s failure to plead – open to the trial judge to raise issues with the parties – appeal dismissed

Court Procedures Rules 2006 (ACT), r 407

DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR 423
Fitzgerald v Masters (1956) 95 CLR 420
Mareva Building Consultants v Zevon [2012] ACTSC 18
Mareva Building Consultants v Zevon (No 2) [2012] ACTSC 24
Morris v Baron and Company [1918] AC 1
Summers v The Commonwealth (1918) 25 CLR 144
Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 2 – 2012
No. SC 676 of 2009

Judges: Burns and Cowdroy JJ and Nield AJ
Supreme Court of the ACT
Date: 12 July 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 2 – 2012
  )          No. SC 676 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MAREVA BUILDING CONSULTANTS
Appellant

AND:HARRY ZEVON AND
VIDA ZEVON
Respondents

ORDER

Judges:  Burns and Cowdroy JJ and Nield AJ
Date:  12 July 2013
Place:  Canberra

THE COURT ORDERS THAT:

The Appeal be dismissed.
The Appellant pay the costs on appeal of the Respondents.

IN THE SUPREME COURT OF THE ) No. ACTCA 2 – 2012

)          No. SC 676 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MAREVA BUILDING CONSULTANTS
Appellant

AND:HARRY ZEVON AND
VIDA ZEVON
Respondents

Judges:  Burns and Cowdroy JJ and Nield AJ
Date:  12 July 2013
Place:  Canberra

REASONS FOR JUDGMENT

The appellant (‘Mareva’) appeals from two decisions of the primary judge.
The first such decision was delivered on 27 January…

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 Mareva Building Consultants v Zevon

Details

AGLC: Mareva Building Consultants v Zevon [2013] ACTCA 28
Case: [2013] ACTCA 28
Decision Date: 12 July 2013

CaseChat Overview and Summary

The appeal concerned a contract for the construction of a house between Mareva Building Consultants (appellant) and Zevon (respondent). The central dispute revolved around whether the parties had mutually abandoned or discharged the contract, thereby relieving them of their respective obligations. The matter came before the court on appeal from a trial judge's decision.

The court was required to determine several legal issues. Firstly, whether the parties had reached a mutual consensus that the contract would not be performed, and if their conduct manifested such an intention, leading to the contract's discharge by agreement. Secondly, the court considered whether any abandonment or discharge was conditional upon the appellant building a different house for the respondent. Finally, the court addressed the respondent's failure to plead abandonment or discharge, and whether this prejudiced the appellant or prevented the trial judge from raising these issues.

The court found no error in the trial judge's findings that the parties' conduct was inconsistent with the contract remaining on foot, supporting the conclusion that the contract had been abandoned or discharged by agreement. The court also determined that the conduct of the parties was inconsistent with any alleged condition that abandonment was contingent on the construction of a different house. Furthermore, the court held that the respondent's failure to plead abandonment or discharge did not cause prejudice to the appellant, and it was open to the trial judge to raise these issues with the parties. Consequently, the alternative argument regarding conditional abandonment was rendered moot.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal to the respondents.

Orders

Orders of the court

1. The Appeal be dismissed.

2. The Appellant pay the costs on appeal of the Respondents.

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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