Frumar v Guilfoyle Developments Pty Limited [2014] NSWCA 225

Frumar v Guilfoyle Developments Pty Limited [2014] NSWCA 225

The written communications between 29 June and 1 July 2010 established only a variation substituting 30 April 2012 for 30 November in cl 30.2 and extending the sunset date; they did not establish an unconditional completion date of 30 April 2012. The primary judge was entitled to reject the appellant's oral evidence of a broader variation, and no basis was shown to disturb the credit findings. The evidence, especially the appellant's letter of 3 August 2010 referring to final resolution of his position under cl 40, did not support any agreement that he irrevocably waived his right to rescind in exchange for additional fit-out works. Because the alleged variations were not made out, the...

Jurisdiction
Australia
Judgment Date
15 July 2014
Procedural Posture
Appeal in Contract Proceedings Concerning Alleged Variations to a Contract for Sale of Land and Liquidated Damages / Appeal From Orders of Nicholas J in the Supreme Court of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
['variation of Contractual Relations' 'agreements Contemplating Execution of Formal Document' 'masters V Cameron' 'appellate Review of Findings of Fact' 'credibility Findings' 'liquidated Damages']
['contract Law' 'civil Procedure'] ['variation of Contractual Relations' 'agreements Contemplating Execution of Formal Document' 'masters V Cameron' 'appellate Review of Findings of Fact' 'credibility Findings' 'liquidated Damages']

Case Brief

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Procedural Posture

Appeal in Contract Proceedings Concerning Alleged Variations to a Contract for Sale of Land and Liquidated Damages / Appeal From Orders of Nicholas J in the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether the parties agreed to vary the contract by extending the completion date unconditionally to 30 April 2012.' 'Whether any variation was partly oral and partly written or was confined to the written correspondence between 29 June and 1 July 2010.' 'Whether the parties agreed that, in consideration of the appellant waiving his right to rescind under cl 40, the respondent would carry out additional fit-out works.' 'Whether any agreement fell within the first or third class of case identified in Masters v Cameron.' "Whether the primary judge's findings based on credibility should be disturbed on appeal." 'Whether the primary judge gave adequate reasons.']

Ratio Decidendi

The written communications between 29 June and 1 July 2010 established only a variation substituting 30 April 2012 for 30 November in cl 30.2 and extending the sunset date; they did not establish an unconditional completion date of 30 April 2012. The primary judge was entitled to reject the appellant's oral evidence of a broader variation, and no basis was shown to disturb the credit findings. The evidence, especially the appellant's letter of 3 August 2010 referring to final resolution of his position under cl 40, did not support any agreement that he irrevocably waived his right to rescind in exchange for additional fit-out works. Because the alleged variations were not made out, the...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']