Marinchek v Cabport Pty Ltd - [2010] NSWCA 334

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 2010

JUDGMENT 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 481

PARTIES: 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

MACFARLAN JA
HANDLEY AJA
HARRISON J
9 DECEMBER 2010

MARINCHEK v CABPORT PTY LTD

Judgment

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…

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: [2010] NSWCA 334
Decision Date: 9 December 2010

CaseChat Overview and Summary

In *Marinchek v Cabport Pty Ltd*, the New South Wales Court of Appeal considered an appeal concerning a dispute arising from a settlement agreement. The appellant, Mr Marinchek, had entered into a settlement agreement with the first respondent, Cabport Pty Ltd, to resolve certain disputes. However, Mr Marinchek later sought to pursue claims that he alleged were not within the contemplation of the parties at the time the settlement agreement was executed.

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

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:	Marinchek v Cabport Pty Ltd [2010] NSWCA 334
HEARING DATE(S):	23 September 2010
JUDGMENT DATE:	9 December 2010
JUDGMENT 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 481
PARTIES:	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