JENNINGS CONSTRUCTIONS LTD v QH AND M BIRT LTD [1989] NSWCA 111

JENNINGS CONSTRUCTIONS LTD v QH AND M BIRT LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and PRIESTLEY JA 31 January 1989

[1989] NSWCA 111

Gleeson CJ In this matter there are two applications for leave to appeal from decisions respectively of Mr Justice Cole and Mr Justice Brownie of the Commercial Division of the Court.

Mr Staff, senior counsel for the claimant in both cases, accepts that the fate of the second application depends upon that of the first application in the sense that if the first application is refused the second application be also.

By majority the Court is of the view that the applications should be refused.

The majority view is as follows. In the first place, there is no error of principle in the reasoning of Mr Justice Cole at first instance.

In particular, the correctness of his Honour's reasoning on the issue of repudiation has not been shown to be sufficiently in doubt to warrant the granting of leave to appeal.

In relation to the second of the two questions identified and considered by Mr Justice Cole in his reasons for judgment, Mr Staff sought in His Court not so much to challenge his Honour's reasoning as to raise, as a bare point of law, a new point. It appears from the material before us that this point is new not only in the sense that it was not raised before the arbitrator, but also in the sense that it was not raised before Mr Justice Cole. The material to which I refer includes the written submissions made at first instance.

The point, stated as a bare proposition of law is it must be acknowledged, one of interest and importance. It is as follows: that a claim based upon quantum meruit to a reasonable sum for work carried out by a contractor under a contract which is repudiated by the other party to it and where that repudiation is accepted, is not all available remedy at law. Mr Staff accepts that the current state of authority is against the point but he seeks to have the authorities reviewed.