Mulligan v Benton

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CITATION: Mulligan v Benton [1999] NSWCA 339
FILE NUMBER(S): CA 40091/98
HEARING DATE(S): 26/02/99
JUDGMENT DATE:
24 September 1999

PARTIES :
James Bruce Mulligan
Estate of the Late Valmai Mulligan
Ian Benton
JUDGMENT OF: Beazley JA at 1; Stein JA at 42; Sheppard AJA at 44
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 1286/94
LOWER COURT JUDICIAL OFFICER: Downes DCJ
COUNSEL: Appellant: M Cashion SC/ C Robinson
Respondent: V Gray
SOLICITORS: Appellant: Turner Freeman
Respondent: Watkins Tapsell
CATCHWORDS: Breach of contract; terms of contract; claim and cross-claim; Referee report; District Court Rules Part 28; Supreme Court Rules Part 72; damages; standing
ACTS CITED: District Court Rules Part 28B, r2; r4; r7; r10; r12
Supreme Court Rules Pt 72, r 13
Suitors Fund Act 1951 (NSW)
CASES CITED:
 Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (unreported, New South Wales Court of Appeal, 8 June 1994)
Super Pty Ltd v SJP Formwork (1992) 29 NSWLR 549
Homebush Abbatoir Corp v Bermria Pty Ltd (1991) 22 NSWLR 605
Cape v Maidment (1991) 98 ACTR 1
Nicholls v Stamer [1980] VR 479
Jordon v McKenzie (1987) 26 CPC (2d) 193
DECISION: Appeal Dismissed; Cross-Appeal Dismissed


      THE SUPREME COURT

      OF NEW SOUTH WALES

      COURT OF APPEAL

      CA 40091/98
      DC 1286/94

      BEAZLEY JA
      STEIN JA
      SHEPPARD AJA

      Friday, 24 September 1999


      JAMES BRUCE MULLIGAN & ESTATE OF LATE VALMAI MULLIGAN v IAN BENTON & ANOR


      By contract made on 11 October 1992 the appellants agreed to sell and the respondents to buy certain plant and equipment of a conveyorised processing line for $140,000. The purchase price was payable by instalments. The respondents made the fist two payments and refused to make any further payments. The appellants treated this as a repudiation of the contract and commenced proceedings to recover the amount due. The respondents cross-claimed on the basis that the line was not properly commissioned in accordance with the terms of the contract and sought damages for the loss they suffered as a result.

      During the course of proceedings, evidence was called that the assembly and installation of the plant and equipment was not carried out in a proper and workmanlike manner. His Honour considered that evidence was unclear as to what parts of the installation were unsatisfactory and what costs would rectify the unsatisfactory work. Accordingly, he appointed a referee under Part 28 of the District Court Rules .

      The trial judge held that the appellants were not in breach of contract and ordered the respondents to pay the balance of the purchase price. However, his Honour also found for the respondents on the cross-claim on the basis that, although the plant was fully operational on the Monday after it was installed, it was not installed in a proper and workmanlike manner.

      On appeal, the appellant alleged:

      (i) that the finding on the claim and cross-claim were inconsistent and could not stand together. Having succeeded on the claim, the cross-claim should have been dismissed;

      (ii) his Honour erred in…

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Details
Case
[1999] NSWCA 339
Decision Date

CaseChat Overview and Summary

Mulligan (the appellant) brought proceedings against Benton (the respondent) in the District Court of New South Wales, alleging breach of contract. Benton filed a cross-claim. The matter was referred to a referee for investigation and report pursuant to the District Court Rules Part 28. The referee's report was adopted by the District Court, and judgment was entered for the respondent on the claim and cross-claim. The appellant appealed to the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the District Court erred in adopting the referee's report, and consequently, whether the judgment entered for the respondent was correct. This involved an examination of the terms of the contract between the parties and the appellant's standing to bring the claim. The court also considered the application of the rules governing references to a referee.

The Court of Appeal found no error in the District Court's adoption of the referee's report. Their Honours were satisfied that the referee had properly considered the evidence and the terms of the contract, and that the findings made were open to the referee on the material before him. The appellant's arguments regarding the interpretation of the contract and his standing were rejected. The court applied principles of contractual interpretation and the rules of court concerning references, finding that the referee's findings of fact were sound and that the legal conclusions drawn were appropriate.

The appeal and the cross-appeal were both dismissed.

Orders

Orders of the court

Appeal Dismissed; Cross-Appeal Dismissed

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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