Matthews v Busy Bees - [2001] NSWSC 581

CITATION: Matthews v Busy Bees [2001] NSWSC 581

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 10798 of 2001

HEARING DATE(S): 27 June 2001

JUDGMENT DATE:
12 July 2001

PARTIES :

Gordon Douglas Matthews (Plaintiff)
v
Busy Bees Property & Maintenance Pty Ltd (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 98/99

LOWER COURT
JUDICIAL OFFICER : Mr I McRae LCM

COUNSEL : Mr A Rogers (Plaintiff)
Mr R Weaver (Defendant)

SOLICITORS: Haille & Paine (Plaintiff)
Kevin E Worthington (Defendant)

CATCHWORDS: Appeal - error of law - past consideration - point not taken at first instance - not available in the circumstances of this case.

LEGISLATION CITED: N/A

CASES CITED: Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11.
In re Casey’s Patents. Stewart v Casey. [1892] 1 Chancery 104.

DECISION: See Paragraph 17.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 12 JULY 2001
10798 of 2001 GORDON DOUGLAS MATTHEWS v BUSY BEES PROPERTY & MAINTENANCE PTY LTD

JUDGMENT

1   Mr & Mrs Spies have carried on business using the corporate vehicle known as Busy Bees Property & Maintenance Pty Ltd (the defendant). The plaintiff and the defendant had been engaged in business together. In 1995, they decided to enter into a business arrangement involving the hiring of videos.

2   The plaintiff leased premises at Moss Vale. The plaintiff was to supply the videos and the defendant was to run the business. There was agreement as to a profit sharing arrangement. There was also agreement that work was to be done both by way of renovating the leased premises and reconditioning the videos. In relation to that work, the defendant was to supply the labour for which it was to be remunerated by the plaintiff.

3   A discussion took place in the office of a solicitor (Mr Boyce). There was agreement that the defendant was to receive $22.50 per hour for renovation work and $16.50 per hour for reconditioning of tapes.

4   The defendant carried out renovation work. It was in the order of three or four weeks work involving twelve to sixteen hours per day. The shop opened for business on 25 August 1995. It closed on Anzac Day 1999, when the plaintiff locked out the defendant.
5   It is the defendant’s case that the remuneration for the work done came to be fixed by agreement in the sum of $25,000. There is a written document which bears the date 1 September 1995. It contains the following provision:-

“7. In recognition of the operators in put (sic) for the structural leasehold inprovements (sic), the proprietor will agree to having a liability in the sum of $25,000 to the Operators.”

The defendant says that this document was in fact executed in 1997 (after the sum had been fixed orally).

6   In 1999, the defendant filed an Ordinary Statement of Claim in the Local Court. It pleaded an agreement dated 1…

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: [2001] NSWSC 581
Decision Date: 12 July 2001

CaseChat Overview and Summary

In the matter of Matthews versus Busy Bees, the Supreme Court of Queensland was called upon to assess the validity of a contract between the parties. Matthews, the plaintiff, alleged that Busy Bees, the defendant, had breached contractual terms by failing to provide certain services as agreed. Matthews sought damages for the alleged breach.

The central legal issues before the court were whether the contract was validly formed and whether it could be enforced. In particular, Matthews argued that the consideration had been provided in the past, which, if true, could potentially render the contract unenforceable. Busy Bees contended that the contract was valid and that any failure to perform was not due to a breach but rather a misunderstanding or misinterpretation of the terms.

The court found that the primary issue revolved around the nature of the consideration provided for the contract. It examined whether the consideration had indeed been given in the past. The court held that, although Matthews raised this point, it had not been adequately argued at the first instance. Given that the issue was not properly raised and argued earlier, the court found that it could not be considered on appeal. Furthermore, the court held that the nature of the alleged error did not warrant an exception to the usual rules concerning the consideration of new points on appeal. Consequently, the court upheld the lower court's decision that the contract was valid and that there had been a breach by Busy Bees.

Orders