DON HODGE MOTORS PTY LTD v LECOS PTY LTD T/as JOHN WATSON ELECTRICAL [1990] NSWCA 55

DON HODGE MOTORS PTY LTD v LECOS PTY LTD T/as JOHN WATSON ELECTRICAL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 15 October 1990, 22 October 1990 [1990] NSWCA 55

APPEAL AND NEW TRIAL — EVIDENCE APPEAL AND NEW TRIAL — Oral contract — Defendant's agent dies before trial — Uncorroborated oral evidence of contractual terms — Need for tribunal of fact to scrutinise such evidence with care — Primary findings of Trial Judge not supported by evidence — Inconsistent findings as to credit of witnesses of both parties. held: The judgment of the trial judge was fundamentally flawed and the Court of Appeal could not retry the case on the written record because consistent findings as to credibility had never been made. New trial of action unavoidable.

In re Hodgson (1885) 31 Ch D 177 Plunkett v Bull (1915) 19 CLR 544

Priestley JA I agree with Handley JA. Clarke JA I agree with Handley JA.

Handley JA The appeal before this Court is from a judgment entered by Associate Judge Cowdery in favour of the plaintiff in a District Court action to recover a reasonable price for work done and materials supplied to the defendant. The work involved the provision of electrical wiring and apparatus for the lighting of the new Wagga Wagga Truck Centre for the appellant. The issue at the trial was whether the contract between the parties included a term fixing a maximum price for the work initially of $12,000 and later, of $15,000. Prior to action brought the appellant had paid the $15,000 which it admitted owing. The plaintiff sued for the unpaid balance of $23,545 on the basis of a contract to do the relevant work for a fair price on a do and charge basis. His Honour found a verdict for the plaintiff in the sum of $15,950.

The contract in question was oral and there was a clear conflict of evidence at the trial as to the content of the discussions leading to the formation and variation of the contract.