Batterham v Makeig [2010] NSWCA 86

Batterham v Makeig [2010] NSWCA 86

On proper construction of clause 4 of the Kitchener Project Agreement, the fees imposed by the Council in November and December 2006, which were applied to consultants' costs in pursuit of development approval, were costs for which the respondent was liable. The respondent's refusal to pay those fees, viewed objectively, constituted a blanket refusal of an essential term and a repudiation of the contract, justifying the appellants terminating the agreement. There was no actionable misrepresentation as the appellants did not rely upon the respondent's representations about experience. As the respondent repudiated, his claims failed and the proceedings should be dismissed with costs.

Parties
First Appellant: Brian Joseph Batterham; Second Appellant: Batterham's Bus Lines Pty Limited; Respondent: Peter John Makeig
Jurisdiction
Australia
Judgment Date
22 April 2010
Procedural Posture
Civil Appeal / Court of Appeal Determination on Appeal From Equity Division, Supreme Court of NSW
Outcome
Appeal allowed. Trial judgment and orders set aside. Proceedings and cross-claim dismissed with costs, orders for restitution and associated certificates as set out.
Legal Topics
Construction and Interpretation of Contracts, Repudiation of Contract, Quantum Meruit, Misrepresentation, Breach of Contract, Assessment of Damages, Misleading or Deceptive Conduct
Contract Equity Damages Trade Practices Construction and Interpretation of Contracts Repudiation of Contract Quantum Meruit Misrepresentation +3 more

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Parties

Brian Joseph Batterham

First Appellant

Batterham's Bus Lines Pty Limited

Second Appellant

Peter John Makeig

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Determination on Appeal From Equity Division, Supreme Court of NSW

Legal Issues

  1. 1 Whether the Kitchener Project Agreement obliged the respondent to pay council fees that were being used to pay consultants' costs
  2. 2 Whether respondent breached or repudiated the Kitchener Project Agreement and whether this justified termination
  3. 3 Whether the representation that respondent was an experienced project consultant constituted misleading or deceptive conduct under the Fair Trading Act 1987 and if loss resulted

Ratio Decidendi

On proper construction of clause 4 of the Kitchener Project Agreement, the fees imposed by the Council in November and December 2006, which were applied to consultants' costs in pursuit of development approval, were costs for which the respondent was liable. The respondent's refusal to pay those fees, viewed objectively, constituted a blanket refusal of an essential term and a repudiation of the contract, justifying the appellants terminating the agreement. There was no actionable misrepresentation as the appellants did not rely upon the respondent's representations about experience. As the respondent repudiated, his claims failed and the proceedings should be dismissed with costs.

Court Disposition

Appeal allowed. Trial judgment and orders set aside. Proceedings and cross-claim dismissed with costs, orders for restitution and associated certificates as set out.

Orders

  • Appeal allowed.
  • Orders of Ward J set aside.