The Architects Studio Pty Ltd v Thurlow

The Architects Studio Pty Ltd v Thurlow & Anor

[2006] NTSC 25

PARTIES:THE ARCHITECTS STUDIO PTY LTD

(ACN 074 200 758)

v

THURLOW, ANDREW and INNOCENZI, SUZANNE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:NO LA 19/2005 (20307071)

DELIVERED:  28 MARCH 2006

HEARING DATES:  13 MARCH 2006

JUDGMENT OF:  ANGEL J

CATCHWORDS:

CONTRACT – Interpretation – Subsequent conduct of parties irrelevant.  EVIDENCE & PROCEDURE – Pleadings – Whether party at liberty to pursue case outside pleadings.

REPRESENTATION:

Counsel:

Appellant:J Kelly

Respondent:  S Gearin

Solicitors:

Appellant:Cridlands

Respondent:  Withnalls

Judgment category classification:    B

Judgment ID Number:  Ang200607

Number of pages:  16

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Architects Studio Pty Ltd v Thurlow & Anor

[2006] NTSC 25

No. LA 19/2005 (20307071)

BETWEEN:

THE ARCHITECTS STUDIO PTY LTD

(ACN 074 200 758)

Appellant

AND:

ANDREW THURLOW and SUZANNE INNOCENZI

Respondents

CORAM:     ANGEL J

REASONS FOR JUDGMENT

(Delivered 28 March 2006)

[1]This is a defendant’s appeal against a Local Court judgment in the sum of $21,557.62 for damages for breach of contract.  The respondents sued the appellant for damages for breach of contract and breach of duty of care arising out of the appellant’s engagement by the respondents to design a house at Bayview Haven.

[2]Having concluded that the appellant was liable to the respondents for breach of contract the presiding Magistrate said: “The duties alleged in tort overlap significantly, if not totally with the matters raised in contract.  In my view it is unproductive and unnecessary to analyse the matter further under duty of care”.

[3]The appellant, apart from submitting that the learned Magistrate made findings of fact for which there was no evidence, complained that the learned Magistrate allowed the respondents to argue a case that had not been pleaded and which the appellant had no opportunity to meet and further, that she based her decision on that case thereby depriving the appellant of procedural fairness.  In particular the appellant complains that the learned Magistrate found that there was a contract not only different from that pleaded by the respondents but unsupported by any evidence.

[4]In paragraphs 2 and 3 of the Amended Statement of Claim the respondents pleaded a contract between the parties as follows:

“2.In or about mid December 2000 the plaintiffs contracted with the defendant for the provision of architectural services at lot 6163 Bradhurst Street, Bayview in the Northern Territory of Australia (“the premises”).

Particulars of Contract

(a)For the defendant to design a home within the plaintiffs’        budget expressed to be $250,000;

(b)For the defendant to provide the architectural services to      the plaintiffs for the fee $18,750;

(c)For the defendant to prepare the initial schematic design       and to document and supervise design to completion of         construction within 35 weeks;

(d)For the defendant to engage consultants on behalf of the        plaintiffs to:

(i)     Undertake structural design documentation;

(ii)    Obtain building certification; and

(iii)   Obtain plumbing certification.

(e)To provide a…