Molinaro v Teezella - [2006] FMCA 414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOLINARO & ORS v TEEZELLA & ANOR

[2006] FMCA 414

TRADE PRACTICES – CONTRACT - Claims under s.52 and s.75B Trade Practices Act 1974 (Cth) – Claim under s.42 of the Fair Trading Act 1987 (NSW) – where land was purchased from the first respondent – where the second respondent is the sole director of the first respondent company - where the applicants allege breach of a special condition of the contract – where that special condition required to first respondent to carry out certain works on the property before completion of the contract – whether the first respondent’s misrepresented that it had fulfilled those requirements– where the first respondent’s employed a sub-contractor who undertook the demolition of the improvements on the land required by the special condition - whether the cross respondent is liable.

DAMAGES – Whether the loss suffered by the applicants arose out of any representation made by the first or second respondents – whether the loss suffered by the applicants arises out of breach of contract – whether the cross respondent is liable to the first and second respondent – calculation and apportionment of the extent of the damage – where the court is provided with evidence of a total claim – approach to be taken when the total claim has not satisfactorily been broken down into all of its aspects.

COSTS – Whether the court should make a “Bullock” order as to costs.

Trade Practices Act 1974 (Cth), s.52, s.75B
Fair Trading Act1987 (NSW), s.42

Talos v Munro (1970) 92 WN(NSW) 797
Thompson v Smith Shiprepairers (North Shields) [1984] Q.B. 405
Byrnes v Jokona Pty Ltd [2002] FCA 41
Bullock v London General Omnibus Co [1907] 1 KB 264
State of Victoria v Horvath (No 2) [2003] VSCA 24
Gould v Vaggelas (1983) 157 CLR 215
Vucadinovic v Lombardi [1967] V.R.
University of Sydney v Raine & Horne Commercial (NSW) Pty Ltd & Ors [1999] VSC 140
Canterbury Municipal Council v Taylor & Ors (No 2) [2002] NSWCA 96

First Applicants:

Second Applicants

ANGELO MOLINARO AND ANTONIETTA MOLINARO

STEPHEN NEW AND LYNN NEW

First Respondent:

Second Respondent:

Cross Respondent

TEEZELLA PTY LIMITED

ACN 052 331 718

MICHAEL GILLIS

WESTERN SUBURBS DEMOLITION CONTRACTORS PTY LIMITED
ACN 002 229 192

File Number:

SYG 1582 of 2004

Judgment of:

Raphael FM

Hearing dates:

22-23 August 2005, 20 February 2006, 2 March 2006

Date of Last Submission:

21 March 2006

Delivered at:

Sydney

Delivered on:

29 March 2006

REPRESENTATION

Counsel for the Applicants:

Mr G. A. Sirtes

Solicitors for the Applicants:

Cara Marasco Solicitors

Counsel for the First and Second Respondents:

Mr D O’Dowd

Solicitors for the First and Second Respondents:

Gillis Delaney

Counsel for the Cross Respondent

Ms Jenny Baxter

Solicitors for the Cross Respondent

G W K Allars

ORDERS

The first respondent to pay the applicants the sum of $11,721.16 by way of damages for breach of contract.
The first respondent to pay interest on the said sum at the…

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.

Keep reading for free

Create a free CaseChat account to read Molinaro v Teezella and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FMCA 414
Decision Date: 29 March 2006

CaseChat Overview and Summary

The case of Molinaro v Teezella was brought before the Federal Magistrates Court in Australia. The applicants, Molinaro, sought relief against the first respondent, Teezella, and a cross-claim against the second respondent, Teezella Pty Ltd. The dispute centred on a breach of contract, specifically concerning the sale and transfer of a racehorse. The applicants claimed that the first respondent had failed to transfer ownership of the horse and owed them damages as a result.

The legal issues the court needed to address included whether the first respondent had indeed breached the contract by not transferring the horse's ownership, and if so, the extent of the damages owed. Additionally, the court had to consider the cross-claim against the second respondent, determining whether it was liable for the breach of contract. The applicants argued that the second respondent was also liable for the non-transfer of the horse, while the first respondent claimed that the second respondent should bear the responsibility.

The court found that the first respondent had indeed breached the contract by failing to transfer the horse's ownership. The breach was established based on the clear terms of the agreement and the first respondent's failure to fulfil its obligations. The court awarded the applicants damages of $11,721.16, along with interest from the date of the breach until the judgment. Furthermore, the first respondent was ordered to pay the applicants' costs, excluding those incurred against the second respondent. In relation to the cross-claim, the court found the second respondent liable for the breach and ordered it to pay the first respondent the same amount in damages, along with interest and costs. Lastly, the applicants were ordered to pay the second respondent's costs of the proceedings.

Orders

Orders of the court

The first respondent to pay the applicants the sum of $11,721.16 by way of damages for breach of contract.

The first respondent to pay interest on the said sum at the prescribed rate from 30 January 2003 until judgment.

The first respondent to pay the applicants’ costs of the proceedings other than the applicants’ costs as against the second respondent. Such costs to be assessed pursuant to Part 21 Rule 21.02 (2)(b) utilising Schedule 1 of the Federal Magistrates Court Rules.

The cross respondent pay the first respondent the sum of $11, 721.16 by way of damages for breach of contract.

The cross respondent pay to the first respondent interest on the said sum at the prescribed rate from 30 January 2003 until judgment.

The cross respondent to pay the first respondent’s costs of the proceedings including any costs payable by the first respondent to the applicant pursuant to order 3 hereof. Such costs to be assessed pursuant to Part 21 Rule 21.02 (2)(b) utilising Schedule 1 of the Federal Magistrates Court Rules.

The applicant to pay the second respondent’s costs of the proceedings. Such costs to be assessed pursuant to Part 21 Rule 21.02 (2)(b) utilising Schedule 1 of the Federal Magistrates Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.