New South Wales
Court of Appeal
CITATION: Marinchek v Cabport Pty Ltd [2010] NSWCA 334 HEARING DATE(S): 23 September 2010
JUDGMENT DATE:
9 December 2010JUDGMENT OF: Macfarlan JA at 1; Handley AJA at 65; Harrison J at 66 DECISION: (1) Appeal allowed;
(2) Set aside the orders made at first instance dismissing the appellant’s Cross-Claim against the first respondent, Cabport Pty Ltd, and that the appellant pay the first respondent’s costs of that Cross-Claim;
(3) Order that a new trial be held of the appellant’s Cross-Claim in so far as that Cross-Claim relates to alleged defects in the subject works (other than Defects 13 and 14 identified in the schedules submitted by the parties to this Court) and to alleged overpayment by the appellant;
(4) Order the appellant to pay the second, third and fourth respondents’ costs of the appeal;
(5) Order the first respondent to pay one-half of the appellant’s costs of the appeal; and
(6) The first respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]CATCHWORDS: CONTRACT - agreement to settle disputes - held not to preclude claims in relation to matters of which parties unaware at date of agreement. LEGISLATION CITED: Home Building Act 1989
Trade Practices Act 1974 (Cth)CATEGORY: Principal judgment CASES CITED: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
International Air Transport Association v Ansett Australia Holidays Limited [2008] HCA 3; (2008) 234 CLR 151
Grant v John Grant & Sons Proprietary Ltd [1954] HCA 23; (1954) 91 CLR 112
Jovic v Lamont [2007] NSWCA 47
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481PARTIES: Scott Marinchek (Appellant)
Cabport Pty Ltd (First Respondent)
Roger Keith O’Sullivan (Second Respondent)
Bernie O’Sullivan (Third Respondent)
Sean Richard O’Sullivan (Fourth Respondent)
FILE NUMBER(S): CA 2009/324387 COUNSEL: J B Simpkins SC/T J Davie (Appellant)
J C Kelly SC/R V Zikmann (Respondents)SOLICITORS: Gillis Delaney Lawyers (Appellant)
Norton Rose Australia (Respondents)
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2740/2005 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 9 October 2009
CA 2009/324387
9 DECEMBER 2010MACFARLAN JA
HANDLEY AJA
HARRISON J
1 MACFARLAN JA:
2 The first respondent (“Cabport”) is a building company of which Mr Bernie O’Sullivan is a director and his son Mr Sean O’Sullivan is an employee. As there is a particular type of residential building work…
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- Case
- [2010] NSWCA 334
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the settlement agreement precluded Mr Marinchek from bringing claims relating to matters of which he was unaware at the date of the agreement. This involved an interpretation of the scope and effect of the settlement agreement in the context of subsequently discovered defects and alleged overpayments.
The Court of Appeal found that the settlement agreement did not preclude claims concerning matters of which the parties were unaware at the time of its execution. The Court reasoned that a settlement agreement, while intended to bring finality to disputes, should not be interpreted to prevent a party from pursuing claims that were genuinely unknown and therefore not contemplated by the parties when they entered into the agreement. Consequently, the Court allowed the appeal, set aside the orders dismissing the appellant's cross-claim against Cabport Pty Ltd, and ordered a new trial of the cross-claim concerning alleged defects (excluding specific identified defects) and alleged overpayment. The Court also made orders regarding the costs of the appeal and the cross-claim.
Orders
Orders of the court
(1) Appeal allowed;
(2) Set aside the orders made at first instance dismissing the appellant’s Cross-Claim against the first respondent, Cabport Pty Ltd, and that the appellant pay the first respondent’s costs of that Cross-Claim;
(3) Order that a new trial be held of the appellant’s Cross-Claim in so far as that Cross-Claim relates to alleged defects in the subject works (other than Defects 13 and 14 identified in the schedules submitted by the parties to this Court) and to alleged overpayment by the appellant;
(4) Order the appellant to pay the second, third and fourth respondents’ costs of the appeal;
(5) Order the first respondent to pay one-half of the appellant’s costs of the appeal; and
(6) The first respondent to have a certificate under the Suitors’ Fund Act 1951, if qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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