Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51 Hearing dates: 28 November 2013 Decision date: 17 March 2014 Before: Basten JA at [1]; Barrett JA at [41]; Young AJA at [183] Decision: (1) Allow the appeal and set aside the orders made in the Equity Division on 31 May 2012.
(2) Give judgment for the appellant against the respondent in the sum of $151,558.95 plus interest to be determined in accordance with order (3).
(3) Direct that the appellant calculate the interest claimed and submit its calculation to the respondent within 10 days from the date of these orders and within 28 days from the date of these orders -
(a) if the parties agree on the appropriate amount, file in the registry consent orders giving effect to that agreement by way of appropriate adjustment of the judgment sum; or
(b) in default of agreement, each party shall file and serve a document not exceeding two pages that sets forth its calculation with any necessary explanation so that the Court may resolve the matter on the papers and make an appropriate adjustment to the judgment sum.
(4) Order that the respondent pay the appellant's costs in the court below and in this Court.
(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if not disqualified under s 6(7).
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: RESTITUTION - restitution resulting from unenforceable incomplete, illegal or void contracts - where money paid by purchaser to vendor in anticipation of contract - contract never made - claim for recovery by purchaser - principles upon which money recoverable when contract fails to materialise - LIMITATION OF ACTIONS - limitation period for claim in quasi contract - when time begins to run - EVIDENCE - burden of proof - sufficiency of evidence - whether documentary evidence sufficient to prove making of payments pursuant to a particular arrangement Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Limitation Act 1969 (NSW)Cases Cited: Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344
Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd [2014] VSCA 32
CGM Investments Pty Ltd v Chelliah [2003] FCA 79; (2003) 196 ALR 548
Chesworth v Farrar [1967] 1 QB 407
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Fazio v Fazio [2012] WASCA 72
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32
Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
Guardian Ocean…
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- Case
- [2014] NSWCA 51
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the appellant was entitled to restitution for the payments made, and if so, on what principles such recovery should be based when a contract does not come into existence. Additionally, the court had to consider the applicable limitation period for a claim in quasi-contract and when time begins to run for such a claim, as well as the sufficiency of the evidence, particularly documentary evidence, to prove the making of payments pursuant to a specific arrangement.
The Court of Appeal allowed the appeal, setting aside the orders of the Equity Division. The court found in favour of the appellant, granting judgment for the sum of $151,558.95 plus interest. The court directed the appellant to calculate the interest and submit it to the respondent, with provisions for the parties to either agree on the amount or, in default of agreement, to file submissions for the court to resolve the interest calculation. The respondent was ordered to pay the appellant's costs in both the court below and the Court of Appeal.
Orders
Orders of the court
(1) Allow the appeal and set aside the orders made in the Equity Division on 31 May 2012.
(2) Give judgment for the appellant against the respondent in the sum of $151,558.95 plus interest to be determined in accordance with order (3).
(3) Direct that the appellant calculate the interest claimed and submit its calculation to the respondent within 10 days from the date of these orders and within 28 days from the date of these orders -
(a) if the parties agree on the appropriate amount, file in the registry consent orders giving effect to that agreement by way of appropriate adjustment of the judgment sum; or
(b) in default of agreement, each party shall file and serve a document not exceeding two pages that sets forth its calculation with any necessary explanation so that the Court may resolve the matter on the papers and make an appropriate adjustment to the judgment sum.
(4) Order that the respondent pay the appellant's costs in the court below and in this Court.
(5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if not disqualified under s 6(7).
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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