Mazzeo v McNamara - [2003] WADC 231

MAZZEO -v- McNAMARA & ANOR [2003] WADC 231

Last Update: 06/11/2003

MAZZEO -v- McNAMARA & ANOR [2003] WADC 231
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 231
Case No:	CIV:3047/2000	Heard:	28 MAY 2003
Coram:	DEANE DCJ	Delivered:	31/10/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	10	Judgment Part:	1 of 1
Result:	Application dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	GAETANO (GUY) MAZZEO DAVID McNAMARA REBECCA McNAMARA
Catchwords:	Building dispute Interpretation of clause in Housing Industry Lump Sum Building Contract Application for order that a preliminary question of law arising as to interpretation and application of clause in the contract should be referred to the trial Judge for determination Turns on own facts
Legislation:	Nil
Case References:	American Home Assurance Co v Ampol Refineries Ltd (1987) 10 NSWLR 13 Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348 Primary Building Co v Beris Pty Ltd, unreported; SCt of WA; Library No 8801137; 19 April 1988 Roberts v Roberts (1994) 12 WAR 505 Smith v Maloney (1998) 19 WAR 209 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : MAZZEO -v- McNAMARA & ANOR [2003] WADC 231 CORAM : DEANE DCJ HEARD : 28 MAY 2003 DELIVERED : 31 OCTOBER 2003 FILE NO/S : CIV 3047 of 2000 BETWEEN : GAETANO (GUY) MAZZEO

Plaintiff

AND

DAVID McNAMARA

REBECCA McNAMARA

Defendants

Catchwords:

Building dispute - Interpretation of clause in Housing Industry Lump Sum Building Contract - Application for order that a preliminary question of law arising as to interpretation and application of clause in the contract should be referred to the trial Judge for determination - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff : Mr T H Brickhill

Defendants : Mr R D Shaw

Solicitors:

Plaintiff : Brickhills

Defendants : Phillips Fox

Case(s) referred to in judgment(s):

American Home Assurance Co v Ampol Refineries Ltd (1987) 10 NSWLR 13
Del Borrello v Friedman and Lurie (a firm) [2001] WASCA 348
Primary Building Co v Beris Pty Ltd, unreported; SCt of WA; Library No 8801137; 19 April 1988
Roberts v Roberts (1994) 12 WAR 505
Smith v Maloney (1998) 19 WAR 209

Case(s) also cited:

Nil

(Page 3)

1 DEANE DCJ: In this matter the plaintiff applies to have an issue referred to a Judge for a determination as a preliminary issue in the action whether as pleaded in par 45 of the amended reply and defence to counterclaim by the defendants taking possession of a house at 3 Klenk Road, Attadale, on or about 7 November 2000 without the prior written consent of the plaintiff and by virtue of the operation of cl 17(e) of the Housing Industry Association Lump Sum Building contract ("the contract") dated 4 November 1999 between the plaintiff and the defendants:

"(a) all moneys payable under the building contract between the plaintiff and the defendants are immediately due and payable;

(b) the defendants having…

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 Mazzeo v McNamara

Details

AGLC: Mazzeo v McNamara [2003] WADC 231
Case: [2003] WADC 231
Decision Date: 31 OCTOBER 2003

CaseChat Overview and Summary

In the matter of Mazzeo v McNamara, the dispute arose from a disagreement between the builder and the homeowner regarding the interpretation of a clause in the Housing Industry Lump Sum Building Contract. The case was before the court, which was tasked with deciding whether a preliminary question of law concerning the interpretation of the clause should be referred to the trial judge for determination.

The primary legal issue before the court was whether the interpretation of the clause in the contract should be considered a question of law or fact. The builder argued that the clause was ambiguous and required judicial interpretation, while the homeowner contended that the interpretation was a matter of fact to be decided by the trier of fact. The court needed to determine the appropriate scope of judicial intervention in interpreting contractual terms.

The court examined the nature of the dispute and the relevant contractual clause. It concluded that the interpretation of the clause was not a question of law but rather a question of fact that should be determined by the trier of fact. The court held that the application for an order referring the question to the trial judge should be dismissed. The court emphasised that the interpretation of a contract is generally a matter for the trier of fact, unless the language used is so ambiguous that no reasonable person could interpret it in more than one way.

In light of its findings, the court dismissed the application for an order referring the question of law to the trial judge. The court's decision underscores the importance of allowing the trier of fact to interpret contractual terms, unless the language is unequivocally ambiguous. This case serves as a reminder that courts should be cautious in intervening in the interpretation of contracts, particularly when the contractual language is not inherently ambiguous.

Orders

Orders of the court

Application dismissed

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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