McCann v By-Dezign Pty Ltd - [2001] NSWSC 161

CITATION: McCann v By-Dezign Pty Ltd [2001] NSWSC 161

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4570/00

HEARING DATE(S): 13/03/01

JUDGMENT DATE:
13 March 2001

PARTIES :

Robert McCann (P1)
Pamela Denise McCann (P2)
By-Dezign Pty Limited (D)

JUDGMENT OF: Young J

COUNSEL : T M Thawley (P)
C Harris (D)

SOLICITORS: The Law Firm of Solari's (P)
MatthewsFolbigg (D)

CATCHWORDS: CONTRACTS [7]- Whether contract- Agreement to settle litigation- Deed of release drafted- Whether exchange of deed condition precedent- Held it was.

CASES CITED: GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 622
Masters v Cameron (1954) 91 CLR 353

DECISION: See para 21.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG J

TUESDAY 13 MARCH 2001

4570/00 - McCANN v BY-DEZIGN PTY LTD

JUDGMENT

1 HIS HONOUR: This is an unfortunate dispute over what in this Court is a relatively small amount of money. It is an unfortunate dispute in that almost certainly the costs will far exceed the value of the original problem.

2 The plaintiffs sue for a declaration that Local Court proceedings brought against them by the defendant have been settled.

3 The background facts are that on 3 February 2000 the plaintiffs made a contract with the defendant for the defendant to do certain work in respect of a kitchen and laundry at premises at Swansea for the sum of $20,090.00. There were disputes over the quality of what was being done by the present defendant and the plaintiffs purported to terminate the contract. The defendant sued by a statement of liquidated claim out of the Local Court at Parramatta. The statement of claim recited the agreement of 3 February 2000, and noted that the agreement was to supply and install a kitchen. No particulars were given.

4 The plaintiffs craved leave to refer to the agreement at the hearing as though it were fully set out in the pleading.

5 No defence was ever filed in the Local Court proceedings, but the present plaintiffs provided a draft defence on 25 August 2000 in which they admitted the existence of a contract but stated that the agreement also included the supply and installation of a laundry. The defence claimed that the kitchen cupboards were of inferior quality and did not match the sample, were not of merchantable quality, and other alleged breaches. The present plaintiffs also indicated that they had a cross claim of $40,000.00.

6 However, a without prejudice letter accompanied the defence and cross claim making an offer of settlement which was open for seven days. Five days later a counter offer was put again on a without prejudice basis. The counter offer was that the deposit would be retained by the defendant, plaintiffs to pay additional $1500.00 and retain the cupboards that had been delivered, with each party to pay its own costs. The offer to be open for seven days.

7 On 31 August the plaintiffs’ solicitors wrote the following letter (omitting formal…

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 McCann v By-Dezign Pty Ltd

Details

AGLC: McCann v By-Dezign Pty Ltd [2001] NSWSC 161
Case: [2001] NSWSC 161
Decision Date: 13 March 2001

CaseChat Overview and Summary

McCann and By-Dezign Pty Ltd were the parties in dispute, with the matter being heard in the Supreme Court of Queensland. McCann alleged that By-Dezign Pty Ltd breached a contract between the parties. The dispute centred on the interpretation of a deed of release, which had been drafted to settle the litigation. The key issue was whether the exchange of the deed constituted a condition precedent to the finalisation of the settlement.

The court considered the language of the deed of release and the surrounding circumstances to determine the parties' intentions. It found that the deed was drafted in such a way that the exchange of the deed was a necessary step before the settlement could be finalised. Therefore, the exchange of the deed was a condition precedent to the settlement being effective. The court also noted that the parties had acted in a manner consistent with the exchange of the deed being a condition precedent, such as McCann preparing the deed and By-Dezign Pty Ltd signing it.

Given the court's interpretation of the deed of release, it concluded that the exchange of the deed was a condition precedent to the settlement being effective. This meant that until the deed was exchanged, the settlement could not be considered finalised. As a result, the court found in favour of By-Dezign Pty Ltd and dismissed McCann's claim.

The court's decision was that the exchange of the deed of release was a condition precedent to the settlement being effective. Therefore, the settlement could not be considered finalised until the deed was exchanged. The court dismissed McCann's claim and made no orders for costs.

Orders