Damien v JKAM Investments Pty Ltd [2015] NSWCA 368

Damien v JKAM Investments Pty Ltd [2015] NSWCA 368

The primary judge's finding that Damien contracted with Architectural Collections Pty Ltd for the building work was open on the evidence, including the ACPL quote and scope of works, Damien's concessions, the ACPL invoice used in refinancing, the absence of any JKAM invoice, and the absence of protest after notice of assignment. The debt of $528,000 had been assigned to JKAM and, after Damien terminated the Contract for Sale, the asserted basis for non-payment was undermined. The challenged email tender was properly rejected and the post-contractual conduct was used only to identify the contracting party. The appeal was therefore dismissed with costs.

Jurisdiction
Australia
Judgment Date
26 November 2015
Procedural Posture
Civil Appeal / Appeal From Supreme Court of NSW Decision of Rein J on Cross Claims Concerning Building Work Debt and Set Off
Outcome
Appeal dismissed with costs.
Legal Topics
['building Work Debt' 'identity of Contracting Entity' 'assignment of Debt' 'post Contractual Conduct' 'tender and Admissibility of Email Correspondence' 'set Off']
['contract' 'civil Procedure'] ['building Work Debt' 'identity of Contracting Entity' 'assignment of Debt' 'post Contractual Conduct' 'tender and Admissibility of Email Correspondence' 'set Off']

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Procedural Posture

Civil Appeal / Appeal From Supreme Court of NSW Decision of Rein J on Cross Claims Concerning Building Work Debt and Set Off

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that Damien had contracted with Architectural Collections Pty Ltd for building work valued at $480,000 plus GST.' 'Whether there was a debt due to Architectural Collections Pty Ltd that was validly assigned to JKAM Investments Pty Ltd and for which Damien was liable.' 'Whether the primary judge impermissibly relied on post-contractual conduct to identify the contracting entity.' 'Whether the primary judge erred in refusing to allow Damien to tender email correspondence.' 'Whether the primary judge made findings of fact unsupported by evidence.']

Ratio Decidendi

The primary judge's finding that Damien contracted with Architectural Collections Pty Ltd for the building work was open on the evidence, including the ACPL quote and scope of works, Damien's concessions, the ACPL invoice used in refinancing, the absence of any JKAM invoice, and the absence of protest after notice of assignment. The debt of $528,000 had been assigned to JKAM and, after Damien terminated the Contract for Sale, the asserted basis for non-payment was undermined. The challenged email tender was properly rejected and the post-contractual conduct was used only to identify the contracting party. The appeal was therefore dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']