Tagget v McLean Austquip Pty Ltd - [2014] NSWSC 1310

Supreme Court

New South Wales

Medium Neutral Citation: Tagget v McLean Austquip Pty Limited [2014] NSWSC 1310
Hearing dates: 13 September 2013
Decision date: 17 September 2014
Jurisdiction: Common Law
Before: Hidden J
Decision:
Appeal dismissed

Catchwords: LOCAL COURT CIVIL CLAIM - appeal on questions of law - action for work done and materials provided - whether claim contractual or restitutionary - reasonableness of amount claimed
Legislation Cited: Builders' Licencing Act 1971
Local Court Act 2007
Cases Cited: Castano v Ashglow Pty Ltd [2009] NSWSC 919
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Horton v Jones [No 1] (1934) 34 SR (NSW) 359
Lumbers v W Cook Builders Pty Ltd [2008] HCA 27
Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 22
Category: Principal judgment
Parties: Peter Francis Tagget (appellant)
McLean Austquip Pty Limited (respondent)
Representation: Counsel:
W Calokerinos (appellant)
J-J Loofs (respondent)
Solicitors:
Grant Patrick Butterfield - Marsdens Law Group (appellant)
Paul Brown - McDonald & Partners (respondent)

File Number(s): 2013/99061

Judgment

HIS HONOUR: This is an appeal, pursuant to s 39 of the Local Court Act 2007, arising from proceedings in the Local Court brought by McLean Austquip Pty Limited ("McLean") against Peter Tagget. McLean was successful, and Mr Tagget has appealed to this court on questions of law. If the appeal is upheld he seeks an order pursuant to s 41(1)(c) of the Local Court Act remitting the matter to the Local Court for redetermination.

McLean brought the proceedings in the Local Court for the recovery of money said to be owing by Mr Tagget for work done and materials supplied. Mr Tagget was the sole director of a company, Mongrel Developments Pty Ltd ("Mongrel Developments"), which McLean joined as a second defendant in the proceedings, being unsure whether the correct defendant was that company or Mr Tagget personally. As I understand it, Mr Tagget's business was the supply of bulldozing and excavator services. In the light of evidence of the dealings between McLean and Mr Tagget, the magistrate who heard the matter determined that Mr Tagget was "the relevant defendant". The claim against Mongrel Developments was dismissed.

McLean's claim was for repairs it had undertaken for Mr Tagget to an excavator and a bulldozer. The only evidence before the magistrate was led in McLean's case, principally an affidavit of its sole director, Mr John McLean, to which was annexed relevant documentation, including invoices. The amount outstanding was said to be roughly $42,000. Mr Tagget led no evidence. Both parties were represented in the Local Court, but not by counsel who appeared in this court.

The magistrate awarded McLean the amount sought, plus interest and costs. His Honour found that the work specified in the invoices had been requested by Mr Tagget and performed by McLean, and that the amounts claimed were reasonable. He noted that there was no evidence of any complaint by Mr Tagget about those amounts, or about the quality of the work undertaken…

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 Tagget v McLean Austquip Pty Ltd

Details

AGLC: Tagget v McLean Austquip Pty Limited [2014] NSWSC 1310
Case: [2014] NSWSC 1310
Decision Date: 17 September 2014

CaseChat Overview and Summary

The appeal before the Local Court involved a dispute between Tagget and McLean Austquip Pty Ltd regarding the amount claimed for work done and materials provided. The case centred on whether the claim was contractual or based on restitutionary grounds, as well as the reasonableness of the amount claimed. The Local Court had dismissed McLean Austquip Pty Ltd's appeal on the basis that the amount claimed was reasonable, and allowed the claim. The company appealed to the District Court, seeking to overturn the Local Court's decision.

The primary legal issue before the District Court was whether the claim made by Tagget against McLean Austquip Pty Ltd was contractual or based on restitutionary grounds. The court needed to determine the appropriate legal framework to apply to the claim and assess the reasonableness of the amount claimed. Additionally, the court had to consider whether the Local Court had correctly applied the relevant principles of law in determining the reasonableness of the amount claimed.

The District Court found that the claim was not purely contractual but had elements of a restitutionary claim, as there was no written contract between the parties. The court held that the reasonable value of the work done and materials supplied could be recovered under restitution. The court held that the Local Court had correctly applied the principles of law in determining the reasonableness of the amount claimed. The District Court found that the Local Court had properly considered the nature of the work done, the materials supplied, and the market rates for such work, and had arrived at a reasonable amount.

The District Court dismissed the appeal, affirming the Local Court's decision that the amount claimed was reasonable and allowing the claim. The court held that the Local Court had correctly applied the principles of law in determining the reasonableness of the amount claimed, and that the claim was not purely contractual but had elements of a restitutionary claim. The appeal was dismissed, and the claimant was entitled to recover the reasonable value of the work done and materials supplied.

Orders