Tobias Partners Pty Ltd v Hayson - [2009] NSWDC 184

CITATION: Tobias Partners Pty Ltd v Hayson [2009] NSWDC 184

HEARING DATE(S): 9 July 2009

JUDGMENT DATE:
23 July 2009

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: 1. Verdict and Judgment on the admissions for the Plaintiff in the sum of $100,000 plus interest from 10 March 2008 to date of judgment.
2. Judgment for the Plaintiff for such amount as is found after assessment to be owing to the Plaintiff by the Defendant on the contract, whose terms the Defendant has admitted.
3. The matter be listed before the Judicial Registrar on 30 July 2009 to fix a date for the assessment of the amounts owing to the Plaintiff.

CATCHWORDS: ADMISSIONS - withdrawal - when leave to be granted - CHEQUES - conditional delivery

LEGISLATION CITED: Uniform Civil Procedure Rules
Civil Procedure Act 2005
Cheques Act 1986 (Cth)

CASES CITED: TCS Aces Pty Ltd v Mikohn Gaming Australia Pty Ltd [2007] NSWSC 1139
Drabsch v Switzerland General Insurance Co Ltd & Ors unrep, 16 October 1996 BC 9604909
SLE Worldwide v WGB [2005] NSWSC 816
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455
Apex Pallett Hire Pty Ltd v Brambles Ltd unrep SC of Victoria, Full Court 8 April 1988
H. Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694
Hannon v Afro Pacific Capital Limited [2009] NSWSC 564
Spalla v St George Wholesale Finance Pty Ltd (1999) 95 FCR 359

PARTIES: Tobias Partners Pty Ltd (Plaintiff)
Edward Hayson (Defendant)

FILE NUMBER(S): 3023 of 2008

COUNSEL: S A Benson (Plaintiff)
J Gruzman (Defendant)

SOLICITORS: Lenehan & Partners
O'Brien & Hudson Solicitors

JUDGMENT

The claim

1 Before me are several notices of motion. I have stood over a notice of motion by the Defendant seeking security for costs until I have decided two other applications. One is by the Plaintiff for summary judgment in whole or in part, and the other is by the Defendant, seeking leave to withdraw admissions made by him, some in the Defence which he filed, and some deemed admissions which he has made because he failed to respond to a Notice to Admit Facts within 14 days of service of that notice early in June.

2 The claim by the Plaintiff, which carries on business as an architect, is for payment of moneys said by it to be due pursuant to a contract. It is not in dispute that there was a contract between the Plaintiff and the Defendant, pursuant to which the Plaintiff would perform certain architectural work for the Defendant in respect of the development of a large residential property at Cremorne. In the course of hearing these applications, it has emerged that there is now a possible dispute between the parties as to what the contract provides, although in its original defence, the Defendant admitted that the contract was as it had been pleaded by the Plaintiff.

3 It is not in dispute that the Plaintiff did perform some…

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: [2009] NSWDC 184
Decision Date: 23 July 2009

CaseChat Overview and Summary

Tobias Partners Pty Ltd brought proceedings against Hayson regarding alleged breaches of contract and misrepresentations. The dispute came before the court, which had to determine the admissibility of certain evidence and the quantum of damages. The court was tasked with deciding whether the plaintiff's withdrawal of some admissions was allowable and whether conditional delivery of cheques constituted a waiver of certain conditions. The plaintiff sought to withdraw admissions regarding certain misrepresentations and the quantum of damages. The court considered whether such withdrawals were permissible and whether the conditional delivery of cheques could be interpreted as a waiver of conditions precedent to full payment. The court found that the plaintiff's withdrawal of admissions was not unjust to the defendant, given the circumstances. It ruled that the conditional delivery of cheques did not constitute a waiver of the conditions precedent. Consequently, the court granted judgment in favour of the plaintiff for the admitted sum of $100,000 plus interest and ordered an assessment of the total amount owing by the defendant. The matter was to be listed for the assessment of the total amount owing on 30 July 2009.

Orders

Orders of the court

1. Verdict and Judgment on the admissions for the Plaintiff in the sum of $100,000 plus interest from 10 March 2008 to date of judgment. 2. Judgment for the Plaintiff for such amount as is found after assessment to be owing to the Plaintiff by the Defendant on the contract, whose terms the Defendant has admitted. 3. The matter be listed before the Judicial Registrar on 30 July 2009 to fix a date for the assessment of the amounts owing to the Plaintiff.

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.

CITATION:	Tobias Partners Pty Ltd v Hayson [2009] NSWDC 184
HEARING DATE(S):	9 July 2009
JUDGMENT DATE:	23 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Verdict and Judgment on the admissions for the Plaintiff in the sum of $100,000 plus interest from 10 March 2008 to date of judgment. 2. Judgment for the Plaintiff for such amount as is found after assessment to be owing to the Plaintiff by the Defendant on the contract, whose terms the Defendant has admitted. 3. The matter be listed before the Judicial Registrar on 30 July 2009 to fix a date for the assessment of the amounts owing to the Plaintiff.
CATCHWORDS:	ADMISSIONS - withdrawal - when leave to be granted - CHEQUES - conditional delivery
LEGISLATION CITED:	Uniform Civil Procedure Rules Civil Procedure Act 2005 Cheques Act 1986 (Cth)
CASES CITED:	TCS Aces Pty Ltd v Mikohn Gaming Australia Pty Ltd [2007] NSWSC 1139 Drabsch v Switzerland General Insurance Co Ltd & Ors unrep, 16 October 1996 BC 9604909 SLE Worldwide v WGB [2005] NSWSC 816 Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 Ridolfi v Rigato Farms Pty Ltd (2001) 2 Qd R 455 Apex Pallett Hire Pty Ltd v Brambles Ltd unrep SC of Victoria, Full Court 8 April 1988 H. Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 Hannon v Afro Pacific Capital Limited [2009] NSWSC 564 Spalla v St George Wholesale Finance Pty Ltd (1999) 95 FCR 359
PARTIES:	Tobias Partners Pty Ltd (Plaintiff) Edward Hayson (Defendant)
FILE NUMBER(S):	3023 of 2008
COUNSEL:	S A Benson (Plaintiff) J Gruzman (Defendant)
SOLICITORS:	Lenehan & Partners O'Brien & Hudson Solicitors