Repfix Industries Pty Ltd v FBD Group Pty Ltd - [2020] NSWDC 514

District Court

New South Wales

Medium Neutral Citation: Repfix Industries Pty Ltd v FBD Group Pty Ltd [2020] NSWDC 514
Hearing dates: 31 August – 2 September 2020
Date of orders: 08 September 2020
Decision date: 08 September 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraphs 202-203

Catchwords:
CONTRACTS – building and construction – plaintiff supplied carpentry and joinery services to customer at three separate commercial premises – dispute about payment terms – whether customer liable to pay more than estimated costs previously agreed to – whether agreement to final payment terms can be inferred – whether construction works were defective – whether rectification works necessary or reasonable to be undertaken – relevance of any lack of intention to carry out rectification works
EVIDENCE – business records admitted – no testimonial evidence to support inferences said to be drawn from records – approach to considering weight to be given to records

Cases Cited:
Australian Securities and Investments Commissionv Rich (2009) 236 FLR 1; [2009] NSWSC 1229
Bellgrove v Elridge (1954) 90 CLR 613
Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd; TWT Property Group Pty Limited v Cenric Group Pty Limited [2019] NSWCA 87
Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193
De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28
Director of War Service Homes v Harris (1968) Qd R 275
Hughes v Metropolitan Railway Co (1877) 2 App Cas 439
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Mann v Paterson Constructions Pty Ltd (2019) 93 ALJR 1164; [2019] HCA 32
Radford v De Froberville [1978] 1 All ER 33
Scott Carver Pty Ltd v SAS Trustee Corporation [2005] NSWCA 462
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance & Ors [2007] NSWCA 253
Wheeler & Anor v Ecroplot [2010] NSWCA 61

Texts Cited:
J W Carter, E Peden & G J Tolhurst, Contract Law in Australia (5th ed, Butterworths, 2007)
J D Heydon, Heydon on Contract (Thomson Reuters, 2019)

Category: Principal judgment
Parties: Repfix Industries Pty Ltd (Plaintiff/Cross-Defendant)
FBD Group Pty Ltd (Defendant/Cross-Claimant)
Representation:
Counsel:
Mr B Ilkosvki for the plaintiff
Mr M Sheldon for the defendant
Solicitors:
Tom Howard Legal for the plaintiff
360 Legal for the defendant

File Number(s): 2017/261010
Publication restriction: Nil

Judgment

INTRODUCTION

The plaintiff and cross-defendant (‘Repfix’) is in the business of providing shop fit out and commercial joinery services. The defendant and cross-claimant (‘FBD’) operates kebab shop businesses, some under the description of ‘Sahara Grill’ in various premises including, relevantly, the Sydney T1 International Terminal,…

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: [2020] NSWDC 514
Decision Date: 08 September 2020

CaseChat Overview and Summary

Repfix Industries Pty Ltd, the plaintiff, filed a claim against FBD Group Pty Ltd, the defendant, in the Supreme Court of New South Wales, seeking payment for carpentry and joinery services provided at three separate commercial premises. The primary dispute centred on the final payment terms for these services, with the plaintiff asserting that the defendant was liable for more than the estimated costs previously agreed upon. Additionally, the plaintiff argued that the defendant should cover the costs of any necessary rectification works due to alleged defects in the construction. The defendant contested these claims, denying any liability beyond the agreed estimates and asserting that any defects did not necessitate rectification.

The court was tasked with determining whether the defendant was bound by an agreement to pay more than the estimated costs and whether it could be inferred from the evidence that the defendant had agreed to cover the costs of any rectification works. Furthermore, the court had to assess whether the construction works were indeed defective and, if so, whether any lack of intention to carry out rectification works was relevant to the plaintiff’s claims. In examining the evidence, the court considered the business records admitted into evidence, but noted the absence of testimonial evidence to support the inferences the plaintiff sought to draw from those records. The court had to weigh the importance of the documentary evidence in the absence of oral testimony.

The court found in favour of the plaintiff on the issue of payment, holding that the defendant was liable for more than the estimated costs. The court inferred from the business records and correspondence that an agreement to final payment terms had been reached, despite the absence of direct testimonial evidence. Regarding the rectification works, the court found that the construction works were defective and that the defendant’s lack of intention to carry out rectification works was relevant, but not decisive, in assessing the plaintiff's claims. The court ordered the defendant to pay the plaintiff the additional sum for the construction works and to contribute to the costs of the necessary rectification works.

Orders

Orders of the court

See paragraphs 202-203

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.

Medium Neutral Citation:	Repfix Industries Pty Ltd v FBD Group Pty Ltd [2020] NSWDC 514
Hearing dates:	31 August – 2 September 2020
Date of orders:	08 September 2020
Decision date:	08 September 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 202-203
Catchwords:	CONTRACTS – building and construction – plaintiff supplied carpentry and joinery services to customer at three separate commercial premises – dispute about payment terms – whether customer liable to pay more than estimated costs previously agreed to – whether agreement to final payment terms can be inferred – whether construction works were defective – whether rectification works necessary or reasonable to be undertaken – relevance of any lack of intention to carry out rectification works EVIDENCE – business records admitted – no testimonial evidence to support inferences said to be drawn from records – approach to considering weight to be given to records
Cases Cited:	Australian Securities and Investments Commissionv Rich (2009) 236 FLR 1; [2009] NSWSC 1229 Bellgrove v Elridge (1954) 90 CLR 613 Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd; TWT Property Group Pty Limited v Cenric Group Pty Limited [2019] NSWCA 87 Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28 Director of War Service Homes v Harris (1968) Qd R 275 Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Mann v Paterson Constructions Pty Ltd (2019) 93 ALJR 1164; [2019] HCA 32 Radford v De Froberville [1978] 1 All ER 33 Scott Carver Pty Ltd v SAS Trustee Corporation [2005] NSWCA 462 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance & Ors [2007] NSWCA 253 Wheeler & Anor v Ecroplot [2010] NSWCA 61
Texts Cited:	J W Carter, E Peden & G J Tolhurst, Contract Law in Australia (5th ed, Butterworths, 2007) J D Heydon, Heydon on Contract (Thomson Reuters, 2019)
Category:	Principal judgment
Parties:	Repfix Industries Pty Ltd (Plaintiff/Cross-Defendant) FBD Group Pty Ltd (Defendant/Cross-Claimant)
Representation:	Counsel: Mr B Ilkosvki for the plaintiff Mr M Sheldon for the defendant Solicitors: Tom Howard Legal for the plaintiff 360 Legal for the defendant
File Number(s):	2017/261010
Publication restriction:	Nil