Khon Vinh Tran & Sang Le Trieu v DSL Computers & Electrical Pty Ltd t/as DLY Constructions & anor Kim Chau Tran & Khon Vinh Tran v Nghiep (David) Ly & anor [2008] NSWDC 42

Khon Vinh Tran & Sang Le Trieu v DSL Computers & Electrical Pty Ltd t/as DLY Constructions & anor Kim Chau Tran & Khon Vinh Tran v Nghiep (David) Ly & anor [2008] NSWDC 42

The written building contract governs the parties' rights absent proof of enforceable oral variations or separate agreements. The $130,000 advanced by Kim Chau Tran was a loan to the corporate defendant, not a payment for work or project management fees, and has not been repaid. Claims for overpayment or underpayment, and the cross-claim, fail due to lack of reliable, probative evidence and failure to discharge the burden of proof.

Parties
First Plaintiff, First Cross Defendant: Kim Chau Tran; Second Plaintiff, Second Cross Defendant: Khon Vinh Tran; Second Plaintiff, Third Cross Defendant: Sang Le Trieu; First Defendant, First Cross Claimant: Nghiep (David) Ly; Second Defendant, Second Cross Claimant: DSL Computers & Electrical Pty Ltd t/as DLY Constructions
Jurisdiction
Australia
Judgment Date
02 April 2008
Procedural Posture
Civil / Final Judgment
Outcome
Action 858/06: Verdict for defendant on claim. Verdict for cross-defendants on cross-claim. Action 859/06: Verdict for plaintiff Kim Chau Tran against defendant DSL Computers & Electrical Pty Ltd (trading as DLY Constructions) in the sum of $190,489. Verdict for defendants otherwise.
Legal Topics
Building Contracts, Variations, Loan Claims, Restitution, Evidence
Contracts Building and Construction Law Building Contracts Variations Loan Claims Restitution Evidence

Case Brief

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Parties

Kim Chau Tran

First Plaintiff, First Cross Defendant

Khon Vinh Tran

Second Plaintiff, Second Cross Defendant

Sang Le Trieu

Second Plaintiff, Third Cross Defendant

Nghiep (David) Ly

First Defendant, First Cross Claimant

DSL Computers & Electrical Pty Ltd t/as DLY Constructions

Second Defendant, Second Cross Claimant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether payments made under a building contract were loans or payments for work
  2. 2 Whether oral variations to the formal building contract are legally enforceable
  3. 3 Whether the parties overpaid or underpaid according to the contract

Ratio Decidendi

The written building contract governs the parties' rights absent proof of enforceable oral variations or separate agreements. The $130,000 advanced by Kim Chau Tran was a loan to the corporate defendant, not a payment for work or project management fees, and has not been repaid. Claims for overpayment or underpayment, and the cross-claim, fail due to lack of reliable, probative evidence and failure to discharge the burden of proof.

Court Disposition

Action 858/06: Verdict for defendant on claim. Verdict for cross-defendants on cross-claim. Action 859/06: Verdict for plaintiff Kim Chau Tran against defendant DSL Computers & Electrical Pty Ltd (trading as DLY Constructions) in the sum of $190,489. Verdict for defendants otherwise.

Orders

  • Action 858/06: Verdict for defendant on claim.
  • Action 858/06: Verdict for cross-defendants on cross-claim.