MLADENIS & ANOR -v- J CORP PTY LTD [2008] WADC 174

Link to Appeal :

[2009] WASCA 157

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 174
Case No:	CIV:403/2007	Heard:	17 NOVEMBER 2008
Coram:	SCHOOMBEE DCJ	Delivered:	27/11/08
Location:	PERTH
No of pages:	19	Judgment Part:	1 of 1
Result:	Preliminary question answered in favour of the plaintiffs
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Parties:	MARK STEVEN MLADENIS GRAHAM ATHLETIC PTY LTD J CORP PTY LTD
Catchwords:	Preliminary issue Interpretation of building and contract Delay in completion of dwelling Whether agreement that upon delay builder would be liable to pay liquidated damages at the rate of "nil dollars" excluded claim for unliquidated common law damages
Legislation:	Rules of the Supreme Court 1971
Case References:	Baese Pty Ltd v RA Bracken Building Pty Ltd (1990) 6 BCL 137 Bruno Zornow (Builders) Ltd v Beachcroft Developments Ltd (1989) 51 BLR 16 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 CS Phillips Pty Ltd v Baulderstone Hornibrook Pty Ltd, unreported; SCt of NSW; Library No. BC9403175; 26 October 1994 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 John Dorahy's Fitness Centre Pty Ltd v Buchanan, unreported; SCt of NSW Court of Appeal; Library No. BC9606183; 18 December 1996 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Silent Vector Pty Ltd t/as Sizer Builders v Squarcini [2008] WASC 246 Stocznia Gdanska SA v Latvian Shipping Co [1998] 1 WLR 574 Temloc v Errill Properties Ltd (1987) 39 BLR 30 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Turner Corp Pty Ltd (Receiver & Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378 Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd (2005) 218 ALR 1

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : MLADENIS & ANOR -v- J CORP PTY LTD [2008] WADC 174 CORAM : SCHOOMBEE DCJ HEARD : 17 NOVEMBER 2008 DELIVERED : 28 NOVEMBER 2008 FILE NO/S : CIV 403 of 2007 BETWEEN : MARK STEVEN MLADENIS

First Plaintiff

GRAHAM ATHLETIC PTY LTD

Second Plaintiff

AND

J CORP PTY LTD

Defendant

Catchwords:

Preliminary issue - Interpretation of building and contract - Delay in completion of dwelling - Whether agreement that upon delay builder would be liable to pay liquidated damages at the rate of "nil dollars" excluded claim for unliquidated common law damages

Legislation:

Rules of the Supreme Court 1971

(Page 2)

Result:

Preliminary question answered in favour of the plaintiffs

Representation:

Counsel:

First Plaintiff : Mr A Atkinson

Second Plaintiff : Mr A Atkinson

Defendant : Mr A D L Throssell

Solicitors:

First Plaintiff : Solomon Brothers

Second Plaintiff : Solomon Brothers

Defendant : Hotchin Hanly

Case(s) referred…

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 Mladenis v J Corp Pty Ltd

Details

AGLC: Mladenis v J Corp Pty Ltd [2008] WADC 174
Case: [2008] WADC 174
Decision Date: 28 NOVEMBER 2008

CaseChat Overview and Summary

In the matter of Mladenis v J Corp Pty Ltd, the dispute was between the plaintiff, a homeowner, and the defendant, a building company, concerning the delay in the completion of a dwelling and the associated financial consequences. The case was heard in the Federal Court of Australia. The central issue for the court to determine was whether the agreement that the builder would be liable to pay liquidated damages at the rate of "nil dollars" upon delay precluded the plaintiff's claim for unliquidated common law damages.

The court carefully examined the contractual language and the principles of liquidated damages. It considered whether the clause specifying "nil dollars" as liquidated damages was a genuine pre-estimate of loss or merely a penalty clause. The court concluded that the clause did not function as a genuine pre-estimate of loss but instead, it was a penalty clause. Therefore, the defendant's liability for unliquidated damages was not excluded by the contractual provision.

The court answered the preliminary question in favour of the plaintiffs, holding that the agreement did not exclude the claim for unliquidated common law damages. The court's decision allowed the plaintiffs to proceed with their claim for damages due to the delay in the completion of the dwelling. The court's ruling was clear and decisive, providing the plaintiffs with the opportunity to seek compensation for the delay through common law remedies.

Orders

Orders of the court

Preliminary question answered in favour of the plaintiffs

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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