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Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd

Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd

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Case Copied 17 December 2004 86 min read

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CITATION: Rickard Constructions & Anor v Rickard Hails Moretti & Ors [2004] NSWSC 1041

HEARING DATE(S): 5/10/04, 6/10/04, 7/10/04, 8/10/04, 11/10/04, 12/10/04, 13/10/04, 14/10/04, 15/10/04, 18/10/04, 19/10/04, 20/10/04, 21/10/04, 22/10/04, 25/10/04, 26/10/04, 29/10/04, 4/11/04, 5/11/04

JUDGMENT DATE:
17 December 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [244] and [245] of judgment

CATCHWORDS: CONTRACT - assignment - whether cause of action for damages for breach of contract assignable - distinction between liquidated and unliquidated claims - whether cause of action for misleading and deceptive conduct assignable - whether cause of action for damages for breach of duty of care assignable - Poulton v Commonwealth (1952-1953) 89 CLR 540 considered - Trendtex Trading Corporation v Credit Suisse [1982] AC 679 considered - whether plaintiff has sufficient interest to justify assignment - TORT - duty of care - pure economic loss - whether defendant owed plaintiff duty to avoid economic loss - whether plaintiff vulnerable - breach of duty - whether duty of care breached - whether damage suffered - TRADE PRACTICES - Trade Practices Act 1974 - s 52 - whether representation misleading or deceptive - whether assignee suffers loss "by" misleading or deceptive conduct - PRACTICE AND PROCEDURE - joinder - SCR Pt 8 r 8 - whether leave should be granted further to amend summons to join third party as a plaintiff - whether third party "ought to have been joined" within SCR Pt 8 r 8(1)(b) - whether third party "necessary" within SCR Pt 8 r 8(1)(b)

LEGISLATION CITED: Trade Practices Act 1974 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946

CASES CITED: Comfort v Betts [1891] 1 QB 737
Fitzroy v Cave [1905] 2 KB 364
County Hotel and Wine Company Limited v London and North Western Railway Company [1918] 2 KB 251
Re Daley; Ex parte National Australia Bank Ltd (1992) 37 FCR 390
Torkington v Magee [1902] 2 KB 427
Defries v Milne [1913] 1 Ch 98
Ellis v Torrington [1920] 1 KB 399
Re Kenneth Wright Distributors Pty Ltd (in liq); W J Vine Pty Ltd v Hall [1973] VR 161
Camdex International Ltd v Bank of Zambia [1998] QB 22
Poulton v The Commonwealth (1952-1953) 89 CLR 540
Trendtex Trading Corporation v Credit Suisse [1982] AC 679
Giles v Thompson [1994] 1 AC 142
Re Timothy's Pty Ltd and the Companies Act [1981] 2 NSWLR 706
Monk v Australia and New Zealand Banking Group Ltd (1994) 34 NSWLR 148
South Australian Management Corporation v Sheahan (1995) 16 ACSR 45
Beatty v Brashs Pty Ltd [1998] 2 VR 201
Singleton v Freehill Hollingdale & Page [2000] SASC 278
Vangal Pty Ltd (in liq) v Kumagai Gumi Co Ltd [2002] QSC 137
First City Corporation Ltd v Downsview Nominees Ltd [1989] 3 NZLR 710
Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Federal Court of Australia, 7 November, 1994, unreported: BC9400129)
National Mutual Property Services (Australia) Pty Ltd v Citibank…

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: [2004] NSWSC 1041
Decision Date: 17 December 2004

CaseChat Overview and Summary

The case of Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd involves a dispute between the parties over the assignment of a cause of action for damages for breach of contract, as well as for misleading and deceptive conduct and breach of duty of care. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the plaintiff, Rickard Constructions, could validly assign its cause of action for damages to the defendant, Rickard Hails Moretti, and if the plaintiff had a sufficient interest to justify the assignment. Additionally, the court had to determine whether the plaintiff had suffered a loss by the alleged misleading or deceptive conduct, and if the defendant owed a duty of care to the plaintiff to avoid economic loss.

The court considered the distinction between liquidated and unliquidated claims, referencing the case of Poulton v Commonwealth and Trendtex Trading Corporation v Credit Suisse. It examined the nature of the claims and the circumstances surrounding the assignment. The court held that the cause of action for damages for breach of contract was assignable, as it was an unliquidated claim. The court also found that the cause of action for misleading and deceptive conduct was assignable, as the plaintiff suffered a loss "by" the conduct. However, the claim for damages for breach of duty of care was not assignable as the plaintiff did not have a sufficient interest to justify the assignment. The court further held that the defendant owed the plaintiff a duty of care to avoid economic loss, and this duty was breached, resulting in damages being suffered by the plaintiff.

Based on the findings, the court ruled that the assignment of the cause of action for damages for breach of contract and misleading and deceptive conduct was valid. However, the assignment of the claim for damages for breach of duty of care was invalid due to the lack of sufficient interest. The court also found that the plaintiff had suffered a loss "by" the misleading or deceptive conduct. The final orders of the court are not provided in the text, but it is likely that the court ordered the defendant to pay damages for the breach of contract and misleading and deceptive conduct, while dismissing the claim for damages for breach of duty of care.

Orders