Dubel Pty Limited –v- G&A Constructions Pty Limited [2007] NSWSC 934

Dubel Pty Limited –v- G&A Constructions Pty Limited [2007] NSWSC 934

The referees' findings that there was a binding variation agreement between the parties, including a right for the plaintiff to terminate forthwith if the defendant fell behind the programme, are supported by both the conversations and subsequent correspondence. There was no agreement that execution of further documentation was a pre-condition to immediate binding effect. The specific negotiated agreement as to immediate termination prevailed over any general notice to show cause provision that might otherwise have applied. The referees' conclusions are adopted with minor modification (deduction of a paragraph and adjustment of the monetary balance).

Parties
Plaintiff / Cross Defendant: Dubel Pty Limited (formerly Belmadar Constructions Pty Ltd); Defendant / Cross Claimant: G&A Constructions Pty Limited
Jurisdiction
Australia
Judgment Date
22 October 2007
Procedural Posture
Civil / Application for Adoption of Referee's Report and Final Judgment
Outcome
Referees' report adopted with modifications
Legal Topics
Referees' Reports, Variation of Contract, Termination of Contract, Oral Agreements, Adoption of Referee's Report
Civil Procedure Contract Law Referees' Reports Variation of Contract Termination of Contract Oral Agreements Adoption of Referee's Report

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Parties

Dubel Pty Limited (formerly Belmadar Constructions Pty Ltd)

Plaintiff / Cross Defendant

G&A Constructions Pty Limited

Defendant / Cross Claimant

Procedural Posture

Civil / Application for Adoption of Referee's Report and Final Judgment

Legal Issues

  1. 1 Whether the referees' report should be adopted with respect to findings on contract variation and right to terminate
  2. 2 Whether an oral exchange and subsequent correspondence amounted to a binding variation agreement and immediate right to terminate without notice to show cause
  3. 3 Whether parties were immediately bound or required execution of formal documentation

Ratio Decidendi

The referees' findings that there was a binding variation agreement between the parties, including a right for the plaintiff to terminate forthwith if the defendant fell behind the programme, are supported by both the conversations and subsequent correspondence. There was no agreement that execution of further documentation was a pre-condition to immediate binding effect. The specific negotiated agreement as to immediate termination prevailed over any general notice to show cause provision that might otherwise have applied. The referees' conclusions are adopted with minor modification (deduction of a paragraph and adjustment of the monetary balance).

Court Disposition

Referees' report adopted with modifications

Orders

  • Paragraph 284 of referees' report deleted
  • Balance to be repaid by the defendant to the plaintiff is varied to $109,422.69