Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.3) [2021] NSWDC 161

Tred Consultants Pty Ltd v Kirana Training Pty Ltd (No.3) [2021] NSWDC 161

On the proper construction of the Co-Operation Agreement as varied, the plaintiff was entitled only to its agreed percentage of VET FEE-HELP funding actually and effectively received by the defendant, which required taking account of amounts re-credited to the Commonwealth under the statutory scheme. No implied duty required the defendant to consult the plaintiff before making re-credit determinations. The referee's relevant calculations were adopted, excluding the unpleaded Second Calculation basis, and the verified re-credit assumption meant the defendant's VET overpayment exceeded the plaintiff's NET entitlement, leaving the defendant entitled to $24,643.36.

Jurisdiction
Australia
Judgment Date
07 May 2021
Procedural Posture
Civil Contract Money Claim and Cross Claim Concerning Vocational Education and Training Funding Payments / Principal Judgment After Partial Reference to Quantify the Plaintiff's Claim and Substantive Hearing
Outcome
The defendant/cross-claimant was held entitled to $24,643.36 after offsetting the plaintiff's NET entitlement against the plaintiff's liability for VET FEE-HELP overpayments; the plaintiff's application to serve further written submissions after judgment was reserved was refused.
Legal Topics
['construction of Contract' 'vocational Education and Training Funding' 'vet FEE HELP Re Credits' "adoption of Referee's Report" 'implied Terms' 'post Reservation Written Submissions']
['contract Law' 'civil Procedure'] ['construction of Contract' 'vocational Education and Training Funding' 'vet FEE HELP Re Credits' "adoption of Referee's Report" 'implied Terms' 'post Reservation Written Submissions']

Case Brief

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Procedural Posture

Civil Contract Money Claim and Cross Claim Concerning Vocational Education and Training Funding Payments / Principal Judgment After Partial Reference to Quantify the Plaintiff's Claim and Substantive Hearing

Legal Issues

  1. 1 ["Whether the referee's report should be adopted under r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW)." "Whether amounts re-credited to the Commonwealth under the VET FEE-HELP scheme should be taken into account in calculating the plaintiff's 60% entitlement under the varied Co-Operation Agreement." 'Whether the defendant owed an implied duty to notify or consult the plaintiff before determining student re-credit applications.' 'Whether the plaintiff should be granted leave to rely on further written submissions supplied after judgment was reserved.']

Ratio Decidendi

On the proper construction of the Co-Operation Agreement as varied, the plaintiff was entitled only to its agreed percentage of VET FEE-HELP funding actually and effectively received by the defendant, which required taking account of amounts re-credited to the Commonwealth under the statutory scheme. No implied duty required the defendant to consult the plaintiff before making re-credit determinations. The referee's relevant calculations were adopted, excluding the unpleaded Second Calculation basis, and the verified re-credit assumption meant the defendant's VET overpayment exceeded the plaintiff's NET entitlement, leaving the defendant entitled to $24,643.36.

Court Disposition

The defendant/cross-claimant was held entitled to $24,643.36 after offsetting the plaintiff's NET entitlement against the plaintiff's liability for VET FEE-HELP overpayments; the plaintiff's application to serve further written submissions after judgment was reserved was refused.

Orders

  • ["Pursuant to r 20.24 of the UCPR, the referee's report of 22 March 2021 was adopted subject to rejection of section E paragraphs 4 and 8, 9(a)(2), 9(b)(2) and 9(d), and Table 9.7." "The plaintiff's application to serve further written submissions in reply after judgment was reserved was refused." 'The defendant was...