WHITE v CULLEN [1989] NSWCA 232

WHITE v CULLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 21 March 1989, 11 May 1989

[1989] NSWCA 232

Contract — whether oral "do-and-charge" contract or improperly executed written contract — finding of fact appealed.

Meagher JA In this matter the plaintiff, Mr Cullen, contracted to build a house for the defendant, Mrs White. He did so.

It is not in contest that originally the parties contemplated that there would be a written contract. Mr Cullen prepared such a contract and signed it. He handed it to the defendant's husband, but Mrs White never signed it.

The plaintiff, Mr Cullen, then sued for the price of the building on a "do-and-charge" basis. His Honour Judge Herron found in his favour. The defendant alleges that there was no "do-and-charge" contract, but that the written (although imperfectly executed) document governed the parties' legal relationship, and that the full amount payable under the written contract had been paid by her to Mr Cullen.

As one would expect in such a contest, there was a wide gulf between the testimonies of the plaintiff and that of the defendant, each of whom gave completely different accounts of his or her dealings with the other. His Honour, on the question of credibility, expressed a clear preference for the version of the plaintiff.

Not only did his Honour find for the plaintiff's version on the ground of his superior credibility and demeanour, but he also pointed to certain external features of the evidence which contradicted the defendant's version. Five of these features should be mentioned:

First, the plaintiff gave evidence which was accepted by his Honour that the defendant had torn up the written contract.

Secondly, whereas the written contract called for the work to be completed within six weeks, the undisputed fact is that the work was done piece-meal over a period of two years without any complaint from the defendant.