Tomko v Palasty

Case [2007] NSWCA 258



New South Wales


Court of Appeal


CITATION: TOMKO v PALASTY [2007] NSWCA 258
HEARING DATE(S): 17/09/07
 
JUDGMENT DATE: 

27 September 2007
JUDGMENT OF: Mason P at 1; Basten JA at 2; Einstein J at 21
DECISION: Appeal dismissed with costs.
CATCHWORDS: CONTRACT – construction of contract – identification of parties to loan contract – admissibility of evidence of post-contractual conduct in determining identity of contracting party – whether statements or conduct of one party constitute an admission as to the identity of the other party to the contract.
LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
CASES CITED: ABB Engineering Construction Pty Ltd v Abigroup Contractors Pty Ltd [2003] NSWSC 665
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647
Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153, [2001] NSWCA 61
B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
El-Mir v Risk [2005] NSWCA 215
FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
Hudson Investment Group Pty Ltd v Australian Hardboards Ltd [2005] NSWCA 716
Independent Timber Importers (Aust) Pty Ltd v Mercantile Mutual Insurance Australia Ltd (2002) 12 ANZ Ins Cas 61-543
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98
John R Keith Pty Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43
Maggbury Pty Limited v Hafele Australia Pty Limited (2001) 210 CLR 181
Magill v National Australia Bank Ltd (2001) Aust Contract R 90-131
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289
Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235
Walker v Andrew (2002) 20 ACLC 1476
PARTIES: John Tomko - appellant
John Palasty - respondent
FILE NUMBER(S): CA 040021/07
COUNSEL: NA Cotman SC, S Loughnan - appellant
GO Blake SC, NJ Allan - respondent
SOLICITORS: Dennis & Company - appellant
Ziman and Ziman Solicitors - respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 2398/05
LOWER COURT JUDICIAL OFFICER: Gibb DCJ
LOWER COURT DATE OF DECISION: 15/12/06



                          CA 40021/07
                          DC 2398/05

                          MASON P
                          BASTEN JA
                          EINSTEIN J

                          Thursday 27 September 2007

John TOMKO v John PALASTY

Headnote

The appellant, John Tomko and the respondent, John Palasty, were engaged in a business venture, which involved various companies including Liverpool Hotels Pty Ltd, Railway Square (Liverpool) Pty Ltd and a holding company, Hotel Assets Group Australia Pty Ltd (formerly Justhom Pty Ltd). In the District Court the trial judge found that the appellant had provided funds to…

Continue reading Tomko v Palasty

Sign in free to access the full text

Details
AGLC
Tomko v Palasty [2007] NSWCA 258
Case
[2007] NSWCA 258
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a dispute concerning the construction of a loan contract and the identification of the parties to that contract. The appellant, Mr Tomko, sought to appeal a decision of the primary judge.

The central legal issues before the Court of Appeal were whether evidence of post-contractual conduct was admissible to determine the identity of a contracting party, and whether statements or conduct by one party could constitute an admission as to the identity of the other party to the contract.

The Court of Appeal, in dismissing the appeal, applied established principles of contract construction. It held that evidence of post-contractual conduct can be admissible to resolve ambiguity in the identification of parties to a contract. Furthermore, the Court affirmed that admissions made by a party, whether through statements or conduct, can be relied upon to establish the identity of the other contracting party, particularly where such admissions clarify an otherwise ambiguous contractual arrangement.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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.