Mitchell v Pacific Dawn Pty Ltd

[2003] QCA 526

SUPREME COURT OF QUEENSLAND

CITATION:

Mitchell v Pacific Dawn P/L [2003] QCA 526

PARTIES:

BRUCE JOSEPH MITCHELL
(plaintiff/respondent)
v

PACIFIC DAWN PTY LTD ACN 070 358 280
(defendant/appellant)

FILE NO/S:

Appeal No 3844 of 2003
Appeal No 5854 of 2003
SC No 3872 of 2001

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeal
Appeal from interlocutory decision

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2003

JUDGES:

McPherson JA and Mackenzie and Wilson JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDERS:

Order that the appeal numbered CA 3844 of 2003 be allowed and the respondent pay the appellant’s costs of and incidental to that appeal1.   

Order that the determination or answers to the question designated 3 (b) in the order of the Supreme Court made on 4 April 2003 be set aside and that the question be determined by another judge of the Supreme Court2.   

Order that the respondent be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 in respect of that appeal3.   

Order that the appeal numbered CA 5854 of 2003 be dismissed  4.   

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – WHERE FINDINGS CLEARLY WRONG – GENERALLY – trial judge’s finding of fact wrong – findings of credibility based on wrong facts – whether issue properly tried

Appeal Costs Fund Act 1973 (Qld), s 15, s 16

Pettitt v Dunkley [1971] 1 NSWLR 376, followed

COUNSEL:

D B Fraser QC, with S R Lumb, for the appellant
J C Bell QC, with P J Bunning, for the respondent

SOLICITORS:

Hogan & Company for the appellant
Gall Standfield & Smith for the respondent

1. McPHERSON JA:  The respondent plaintiff Bruce Mitchell is a builder who on 2 September 1999 entered into a contract with the appellant defendant Pacific Dawn Pty Ltd for the construction of a commercial building on land it owned at Toowong.  The contract incorporated standard printed provisions used for lump sum building contracts but provided for what was described as “a guaranteed upper limit cost of $2,650,000”.  It was agreed that if at completion the construction cost did not exceed that limit, the plaintiff would receive an additional fee of 7.5% = $198,750 plus 107.5% of the cost of variations and extras for which the defendant was liable under the contract. The object was evidently to provide the plaintiff with an incentive to complete the work within the limits of the estimated cost.  If completed for less, the parties were to share the reduction in costs below that sum.  The construction agreement therefore had, as the learned judge remarked, characteristics of a lump sum and a cost plus contract.

1. The precise form or characterisation of the contract counts for little in the narrative of events that follows, although it may have influenced the attitudes of the parties as…