Mohamed v Adrija Pty Ltd (No 2)

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Mohamed v Adrija Pty Ltd (No 2)

Citation:

[2022] ACTSC 89

Hearing Dates:

19, 24 February 2021

Submissions last received:

Decision Date:

17 March 2021

28 April 2022

Before:

McWilliam AsJ

Decision:

See [139]

Catchwords:

APPEAL – CIVIL LAW – Appeal from Magistrates Court – whether error in finding building contract between owners and builder lawfully terminated by builder – whether error in finding owners failed to notify builder of a change of address as required by the contract – whether notice of breach sent by builder in accordance with the contract – whether builder entitled to payment under agreed damages clause in contract

CONTRACT – BUILDING CONTRACT – interpretation – whether error in implied finding that builder’s notice of breach was valid – whether subsequent termination by builder was lawful – whether error in finding no agreement or acquiescence by builder to communicate by email rather than by post as required by the contract – whether agreed damages clause in contract applied

EVIDENCE – HEARSAY – whether evidence of verbal communication by the owners that they had changed address was properly excluded under hearsay rule

Legislation Cited:

Court Procedures Rules 2006 (ACT) sch 2

Evidence Act 2011 (ACT) s 69

Cases Cited:

Adrija Pty Ltd v Abdiwahaab Barkhadle Mohamed & Anor (Magistrates Court of the ACT, Magistrate Morrison, 27 April 2016)

Adrija Pty Ltd v Abdiwahaab Barkhadle Mohamed & Anor (Magistrates Court of the ACT, Magistrate Morrison, 1 June 2016)
Adrija Pty Ltd v Abdiwahaab Barkhadle Mohamed & Ors [2013] ACTSC 12
Adrija Pty Ltd v Mohamed & Anor (Magistrates Court of the ACT, Magistrate Morrison, 7 November 2019)
Adrija Pty Ltd v Mohamed & Anor (No 2) (Magistrates Court of the ACT, Magistrate Morrison, 6 December 2019)
Australia and New Zealand Banking Group Ltd v Westpac Banking Corp [1988] HCA 17; (1988) 164 CLR 662
Australian Financial Services and Leasing Pty Ltdv Hills Industries Ltd [2014] HCA 14; 253 CLR 560
Balog v Crestani (1975) 132 CLR 289
Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited [2017] ACTCA 29
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Cardona v Brown [2012] VSCA 174; 35 VR 538
Coulton v Holcombe (1986) 162 CLR 1
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115
Lampson (Australia) Pty Ltd v Fortescue Metals Group Ltd [No 3] [2014] WASC 162
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Louinder v Leis (1982) 149 CLR 509
Lumbers v W Cook Builders Pty Ltd (in Liquidation) [2008] HCA 27; 232 CLR 635
Maples Winterview Pty Ltd v Liu & Anor [2015] ACTSC 58
Mohamed & Anor v Adrija…

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Details
Case
[2022] ACTSC 89
Decision Date

CaseChat Overview and Summary

The appeal before the court was between Mohamed, the appellant, and Adrija Pty Ltd, the respondent. The dispute centred on the termination of a building contract between the parties, with Mohamed asserting that the contract was wrongfully terminated by Adrija. Adrija contended that Mohamed failed to notify them of a change of address, as required by the contract, and that the termination was lawful. The matter was heard in the Supreme Court of Victoria, with the court being asked to review the findings and decisions of the Magistrates Court.

The central legal issues for the court to decide were whether the Magistrates Court erred in finding that the building contract was lawfully terminated by Adrija, whether Mohamed had failed to notify Adrija of the change of address as required by the contract, whether Adrija's notice of breach was in accordance with the contract, and whether Adrija was entitled to payment under the agreed damages clause in the contract. Additionally, the court was asked to consider whether there was any agreement or acquiescence by Adrija to communicate by email instead of post, as required by the contract, and whether the evidence of verbal communication by Mohamed regarding the change of address was properly excluded under the hearsay rule.

The court found that the Magistrates Court had erred in its interpretation of the contract, particularly in relation to the notice of breach and the agreed damages clause. The court held that Adrija's notice of breach was not valid as it did not comply with the contractual requirement to be in writing and signed. Furthermore, the court found that there was no evidence of an agreement or acquiescence by Adrija to communicate by email instead of post, as required by the contract. Consequently, the court held that Adrija was not entitled to payment under the agreed damages clause. The court also found that the evidence of verbal communication by Mohamed regarding the change of address was properly excluded under the hearsay rule.

The final orders of the court were that the appeal be allowed, the decision of the Magistrates Court be set aside, and the matter be remitted to the Magistrates Court for rehearing in light of the court's findings. The court held that Adrija was not entitled to payment under the agreed damages clause and that the termination of the building contract by Adrija was unlawful. The court further held that the evidence of verbal communication by Mohamed regarding the change of address was properly excluded under the hearsay rule.

Orders

Orders of the court

See [139]

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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