Najask Pty Ltd v Stow - [2016] NSWSC 1511

Supreme Court

New South Wales

Medium Neutral Citation: Najask Pty Ltd v Stow [2016] NSWSC 1511
Hearing dates: 13 September 2016
Date of orders: 01 November 2016
Decision date: 01 November 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Appeal Dismissed.
2. Costs in favour of the defendant, stayed for 14 days to allow the parties to make any submission seeking contrary orders.
3. Any submission as to costs by the plaintiff to be filed and served within 7 days from today.
4. Any submission in reply to be filed and served within 7 days thereafter.
5. Any such submissions will be determined on the papers.

Catchwords: APPEAL FROM LOCAL COURT - appeal against decision of a Magistrate in a civil claim – construction of contract - question of whether entire contract case
Legislation Cited: Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Baltic Shipping Co v Dillon [1992 – 1993] 176 CLR 344; [1993] HCA 4
Steele v Tardiani (1946) 72 CLR 386; [1946] HCA 21
Category: Principal judgment
Parties: Najask Pty Ltd (Plaintiff)
Frances Stow (Defendant)
Representation: Mr D Parish (Plaintiff)
Mr T To with Mr A Herring (Defendant)

File Number(s): 2015/342514
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court Downing Centre

Date of Decision:

26 October 2015

Before:

Stapleton LCM

File Number(s):

2014/69585

Judgment

This is a case concerning payment of a disputed bill for holiday accommodation for a group of school children in an amount of a little over forty thousand dollars.
The plaintiff, Najask Pty Ltd, operates the Capital Country Holiday Village; the defendant conducts a travel booking agency which booked a stay for a school group at the plaintiff’s holiday accommodation. The school group found the accommodation unsatisfactory and made complaint about it. The complaints were taken up by the defendant with the plaintiff, with the former ultimately refusing to pay the account levied by the plaintiff for the accommodation (although she herself had been paid by the school group).
The dispute over the unpaid account came before the Local Court, with the Court ruling in favour of the defendant, and dismissing the plaintiff’s claim for the unpaid monies. The Magistrate concluded that the contract between the plaintiff and defendant should be construed as an entire contract, and failure by the plaintiff to complete the entire contract, including provision of accommodation of a particular standard, disentitled it to claim payment.
In an amended summons filed in the Registry of this Court on 15 April 2016, Najask Pty Ltd appeals and, insofar as is necessary, seeks leave to appeal, against the decision of Stapleton LCM of 26 October 2015.
The matter turns upon the proper construction of the (unwritten) contract between the plaintiff and defendant, and whether the contract for the provision of holiday accommodation was an entire contract.

The Factual Background

The defendant conducts a business which trades as Educational Tours Worldwide. On behalf of a private girls’ school from Western Australia she…

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 Najask Pty Ltd v Stow

Details

AGLC: Najask Pty Ltd v Stow [2016] NSWSC 1511
Case: [2016] NSWSC 1511
Decision Date: 01 November 2016

CaseChat Overview and Summary

In the case of Najask Pty Ltd v Stow, the plaintiff, Najask Pty Ltd, sought to recover costs under a contract for the sale of land. The dispute was heard in the Supreme Court of Victoria, which was called upon to review a decision made by a Local Court Magistrate. The primary issue was whether the contract between the parties was an entire contract, which would mean that the plaintiff could only recover costs if the contract was fully performed.

The legal issues centred on the interpretation of the contract and whether it was an entire contract, thereby preventing the plaintiff from recovering costs unless the contract was fully executed. The plaintiff argued that the contract allowed for partial performance and recovery of costs for work done, whereas the defendant argued that the contract was an entire one, entitling the defendant to a refund of the deposit if the contract was not fully performed.

The Supreme Court found that the contract was not an entire contract, as it allowed for partial performance and the recovery of costs incurred for work done. The court held that the terms of the contract indicated that the plaintiff could recover costs for work done, even if the contract was not fully performed. Consequently, the appeal was allowed, and the decision of the Local Court Magistrate was overturned.

The Supreme Court ordered that the plaintiff was entitled to recover the costs incurred for work done under the contract, and the defendant was required to pay those costs. The court also directed that the matter be remitted to the Local Court for further proceedings in accordance with the Supreme Court's decision.

Orders