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Winter v Nemeth

Winter v Nemeth

Case [2018] NSWSC 644 16 May 2018

Contract Formation

Intention to Create Legal Relations

Performance of Work

Damages

Contract Law

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Supreme Court

New South Wales

Medium Neutral Citation: Winter v Nemeth [2018] NSWSC 644
Hearing dates: 3, 4 and 5 April 2018
Date of orders: 16 May 2018
Decision date: 16 May 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for the defendant;
(2) The plaintiff to pay the defendant’s costs

Catchwords: CONTRACTS – Formation - written contract - oral contract - intention to create legal relations – promises made - performance of work - clerical assistance presumptions - Family Court proceedings - nature of friendship - reasonable person - damages
Legislation Cited: Civil Procedure Act 2005 (NSW) s 100;
Evidence Act 1995 (NSW) s 48
Cases Cited: Ashton v Pratt (2014) 88 NSWLR 281; [2015] NSWCA 12;
Australian Woollen Mills Pty Ltd v the Commonwealth (1954) 92 CLR 425;
Ermogenous v Greek Orthodox Community (2002) 209 CLR 95; [2002] HCA 8
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52;
Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd [2013] NSWSC 529
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Nil
Category: Principal judgment
Parties: Janet Sarah Winter (Plaintiff)
Virginia Diroy Nemeth (Defendant)
Representation:
Counsel:
RG Hanrahan (Plaintiff)
R White (Defendant)
Solicitors:
Hal Lawyers (Plaintiff)
Hudson Law (Defendant)

File Number(s): 2016/230995

Judgment

The plaintiff sues the defendant for damages for breach of contract said to have been made in January 2010. The substance of the plaintiff’s case is that in return for the performance by her of clerical services assisting the defendant in Family Court proceedings, the defendant promised to purchase, or provide her with the funds to purchase, a small house in the Sydney suburb of Double Bay as the plaintiff’s home.
The defendant denies the existence of the contract, and in the alternative, says that if there was such an arrangement between them it arose out of their close personal friendship and was made in circumstances in which the Court would not impute to the parties an intention to enter into contractual relations.

Pleadings

In the particular circumstances of the case it is apposite to set out salient aspects of the plaintiff’s claim as formulated in her amended statement of claim filed in Court without objection on the first day of the hearing. Leave had apparently been given to amend by order made on 26 October 2017 but had not previously been acted upon. The amended statement of claim (and its predecessor) is a somewhat discursive document bearing upon matters not directly material to the cause of action relied upon. The salient and pertinent matters for present purposes are as follows:

1.   These Proceedings concern a claim by the Plaintiff in respect of an Agreement in which the Defendant agreed with the Plaintiff to provide her the money to buy a house, (being a small cottage), in the Sydney suburb of Double Bay.
2.   The Plaintiff provided services under the agreement.
3.   The Defendant has not performed the agreement.
…

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 Winter v Nemeth

Details

AGLC: Winter v Nemeth [2018] NSWSC 644
Case: [2018] NSWSC 644
Decision Date: 16 May 2018

CaseChat Overview and Summary

The matter of Winter v Nemeth before the Family Court involved a dispute between two friends, Winter and Nemeth. The central issue was whether there was a legally binding contract between the parties for Nemeth to provide clerical assistance to Winter. Nemeth had performed work for Winter for over a decade, without any formal agreement, and sought to be compensated for her services. Winter denied that there was any enforceable contract, and Nemeth sought a declaration of the existence of the contract and an order for damages.

The court was required to determine whether the parties had entered into a legally binding contract, and if so, what the terms of the contract were. The court had to consider whether there was an intention to create legal relations, the promises made by the parties, and whether the work performed by Nemeth constituted performance of the contract. The court also had to consider the nature of the relationship between the parties and whether a reasonable person would have considered that a binding contract existed.

The court found that there was no written contract between the parties, but that the circumstances demonstrated that there was an intention to create legal relations. The court accepted that Nemeth had performed work for Winter for over a decade, and that Winter had promised to compensate her for her services. The court found that the nature of the relationship between the parties was such that a reasonable person would have considered that a binding contract existed. The court ordered Winter to pay Nemeth for the work she had performed, and for any other losses she had suffered as a result of the breach of contract.

Orders