HOLMARK CONSTRUCTION COMPANY PTY LTD and OLIVIERI v TOTAL CONCEPT PRODUCTIONS PTY LTD [1991] NSWCA 148

HOLMARK CONSTRUCTION COMPANY PTY LTD and OLIVIERI v TOTAL CONCEPT PRODUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA, MAHONEY JA, MEAGHER JA 2 September 1991, 2 September 1991

[1991] NSWCA 148

APPEAL from District Court — Contract for supply and installation of goods — Judge held contract to be made with both supplier company and managing director of the company Judgment against both — Held: No evidence to support finding that Mr Olivieri was party to contract — Judgment against Mr Olivieri set aside and judgment entered for defendant.

REOPENING of case against company — At trial, judge refused leave to reopen company's case to call important witness Held: No basis on which discretion to refuse reopening could have been exercised — Judgment against company set aside — New trial ordered.

Mahoney JA These appeals concern two proceedings which were brought in the District Court and which have been dealt with together. In view of the issues on which, finally, the appeals turn it is not necessary for me to refer in detail to the facts. Counsel approached the matter, in my opinion, quite correctly in much the same way. It is sufficient to say the basic facts appear from the judgment given by Pain DCJ in the two matters on 18 October 1989.

As his Honour said, the plaintiff, Total Concept Productions Pty Ltd, was a construction company: I use that term in the sense in which it is used in the proceedings. It was engaged to supply and install lighting and audio equipment and special effects equipment, as it was described, at a nightclub known as Ollie's Plaza Inn in Fairfield.

The amount in question in the two proceedings is the outstanding balance of the payment to be made in respect of that work, namely $15,000 together with interest from 15 December 1986. Total Concept Productions Pty Ltd (to which I shall refer as "Total") brought a proceeding first against Holmark Construction Company Pty Ltd ("Holmark") and subsequently it sued Mr Italiano Olivieri, the managing director of Holmark. The learned judge, having heard evidence about the detail of the work in question, came to the conclusion that a contract had been made by Total both with Holmark and with Mr Olivieri and he gave judgment against each of them. Mr Olivieri has appealed against the judgment which has been given against him.