BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177

BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177

The primary judge’s findings in favour of the defence of estoppel were materially flawed because of failure to engage with and misapprehension of significant contemporaneous documentary evidence, improper assessment of corroboration, and factual findings inconsistent with the documents; consequently, the appeal was allowed and a retrial ordered.

Parties
Appellant: BM Sydney Building Materials Pty Ltd; First Respondent (2017/85334): AWT Building Group (AUST) Pty Ltd; Second Respondent (2017/85334 and Third Respondent 2017/85330): Wenge Teng; First Respondent (2017/85330): AWT Building Pty Ltd; Second Respondent (2017/85330): Hui Li
Jurisdiction
Australia
Judgment Date
24 July 2017
Procedural Posture
Appeal / Appeal Judgment (from District Court to Court of Appeal)
Outcome
Appeal allowed; orders set aside; remitted for retrial; costs of appeal to appellant; trial costs in discretion on remittal.
Legal Topics
Estoppel, Appeals, Evidence (credit/weight/reliability), Remittal for Retrial
Civil Procedure Equity Estoppel Appeals Evidence (credit/weight/reliability) Remittal for Retrial

Case Brief

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Parties

BM Sydney Building Materials Pty Ltd

Appellant

AWT Building Group (AUST) Pty Ltd

First Respondent (2017/85334)

Wenge Teng

Second Respondent (2017/85334 and Third Respondent 2017/85330)

AWT Building Pty Ltd

First Respondent (2017/85330)

Hui Li

Second Respondent (2017/85330)

Procedural Posture

Appeal / Appeal Judgment (from District Court to Court of Appeal)

Legal Issues

  1. 1 Whether the primary judge erred in upholding a defence of estoppel based on an oral agreement
  2. 2 Whether the primary judge failed to have regard to contemporaneous documentary evidence supportive of the appellant
  3. 3 Whether the primary judge erred in assessing witness credit and corroboration

Ratio Decidendi

The primary judge’s findings in favour of the defence of estoppel were materially flawed because of failure to engage with and misapprehension of significant contemporaneous documentary evidence, improper assessment of corroboration, and factual findings inconsistent with the documents; consequently, the appeal was allowed and a retrial ordered.

Court Disposition

Appeal allowed; orders set aside; remitted for retrial; costs of appeal to appellant; trial costs in discretion on remittal.

Orders

  • In relation to proceeding 2017/85334: 1. Appeal allowed. 2. Set aside the orders made on 15 February 2017 in favour of AWT Building Group (AUST) Pty Ltd and Mr Teng. 3. Remit the proceeding to the District Court for a retrial. 4. AWT Building Group (AUST) Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd's costs of the...
  • In relation to proceeding 2017/85330: 1. Appeal allowed. 2. Set aside the orders made on 15 February 2017 in favour of AWT Building Pty Ltd and Mr Teng. 3. Remit the proceeding to the District Court for a retrial. 4. AWT Building Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd's costs of the appeal. 5. Costs of the new...