Oaktwig Pty Limited v WILLIAMS - [2008] NSWCA 106

New South Wales

Court of Appeal

CITATION: OAKTWIG PTY LIMITED v WILLIAMS [2008] NSWCA 106

HEARING DATE(S): 19 May 2008

JUDGMENT DATE:
19 May 2008

JUDGMENT OF: Beazley JA at 17; McColl JA at 18; Handley AJA at 1

DECISION: Leave to appeal refused.
Summons dismissed with costs.

CATCHWORDS: APPEAL - Appellant not entitled on appeal to revive claim disclaimed at trial which might had been answered by evidence. - CONTRACT - success fee payable on defined event - no implied term for fee to be payable on another event.

LEGISLATION CITED: Environmental Planning and Assessment Act, s 82A

CASES CITED: Suttor v Gundowda 81 CLR 418

PARTIES: Oaktwig Pty Limited (T/as Homeplan Project Design Resources) - Appellant
Allan Williams - Respondent

FILE NUMBER(S): CA 40472 of 2007

COUNSEL: Mr R Clark for the Claimant
Mr J Atkin for the Opponent

SOLICITORS: Websters - Claimant
Bruce MacDonald Lawyers - Opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1176/2007

LOWER COURT JUDICIAL OFFICER: KEARNS DCJ

LOWER COURT DATE OF DECISION: 25 June 2007

40472/2007

BEAZLEY JA
MCCOLL JA
HANDLEY AJA
MONDAY 19 MAY 2008

OAKTWIG PTY LIMITED (ACN 050 958 736) TRADING AS HOMEPLAN PROJECT DESIGN RESOURCES v ALLAN WILLIAMS

CATCHWORDS

APPEAL - Appellant not entitled on appeal to revive claim disclaimed at trial which might had been answered by evidence.

CONTRACT - success fee payable on defined event - no implied term for fee to be payable on another event.

HEAD NOTE

The claimant, a firm of architects, sued for a success fee alleged to be payable on the grant of development consent by the Land and Environment Court. The express terms of the oral contract, as found by the trial judge, provided for the fee to be payable on the grant of development consent by the Council. A claim in quantum meruit was expressly disclaimed at the trial, as was an implied term providing for the fee to be payable on a grant of development consent by the Court. On the application for leave to appeal, which was treated as the hearing of the appeal, the claimant attempted to rely on the implied term that had been disclaimed. HELD: The claimant was not entitled to rely on that implied term on appeal because the opponent might have led further evidence at the trial to rebut that term, and in any event the term was inconsistent with the express terms of the contract.

ORDERS

Summons dismissed with costs.

**********

40472/2007

BEAZLEY JA
MCCOLL JA
HANDLEY AJA
MONDAY 19 MAY 2008

OAKTWIG PTY LIMITED (ACN 050 958 736) TRADING AS HOMEPLAN PROJECT DESIGN RESOURCES v ALLAN WILLIAMS

Judgment

1 HANDLEY AJA: This is an application for leave to appeal by a plaintiff, an architect, who had sued a developer for professional fees. The trial judge dismissed the claim except for a quantum meruit amount for time spent in connection with an appeal to the Land and Environment Court which was not in dispute.

2 The claimant seeks leave…

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.

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Details

Case: [2008] NSWCA 106
Decision Date: 19 May 2008

CaseChat Overview and Summary

Oaktwig Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute over a contractual success fee. The appellant, Oaktwig, had entered into an agreement with the respondent, Mr Williams, under which a success fee was payable upon the occurrence of a defined event. The primary judge had found that the success fee was not payable in the circumstances that had arisen.

The central legal issue before the Court of Appeal was whether the primary judge had erred in law in finding that the success fee was not payable. Specifically, the court considered whether there was an implied term in the contract that the success fee would be payable upon an event other than the one expressly defined in the agreement. The appellant sought to argue on appeal that the fee should be payable on this alternative event.

The Court of Appeal held that the appellant was not entitled to revive a claim on appeal that it had disclaimed at trial. The court reasoned that if the appellant had intended to pursue the claim based on the alternative event, it should have done so at the trial, where evidence could have been led to address that specific claim. The court found no basis for implying a term into the contract that would render the success fee payable on the event now sought to be relied upon by the appellant.

Consequently, leave to appeal was refused, and the summons was dismissed with costs.

Orders

Orders of the court

Leave to appeal refused. Summons dismissed with costs. (per Handley AJA, Beazley and McColl JJA agreeing)

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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CITATION:	OAKTWIG PTY LIMITED v WILLIAMS [2008] NSWCA 106
HEARING DATE(S):	19 May 2008
JUDGMENT DATE:	19 May 2008
JUDGMENT OF:	Beazley JA at 17; McColl JA at 18; Handley AJA at 1
DECISION:	Leave to appeal refused. Summons dismissed with costs.
CATCHWORDS:	APPEAL - Appellant not entitled on appeal to revive claim disclaimed at trial which might had been answered by evidence. - CONTRACT - success fee payable on defined event - no implied term for fee to be payable on another event.
LEGISLATION CITED:	Environmental Planning and Assessment Act, s 82A
CASES CITED:	Suttor v Gundowda 81 CLR 418
PARTIES:	Oaktwig Pty Limited (T/as Homeplan Project Design Resources) - Appellant Allan Williams - Respondent
FILE NUMBER(S):	CA 40472 of 2007
COUNSEL:	Mr R Clark for the Claimant Mr J Atkin for the Opponent
SOLICITORS:	Websters - Claimant Bruce MacDonald Lawyers - Opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1176/2007
LOWER COURT JUDICIAL OFFICER:	KEARNS DCJ
LOWER COURT DATE OF DECISION:	25 June 2007