MITCHELL v JA BRADSHAW PTY LTD v MITCHELL [1991] NSWCA 202

MITCHELL v JA BRADSHAW PTY LTD v MITCHELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MAHONEY and HANDLEY JJA 17 June 1991, 17 June 1991

[1991] NSWCA 202

CONTRACT — building contract or management contract — question of fact — reasons of trial judge adopted — no question of principle.

Samuels JA We have had some opportunity of considering this appeal from Mr Justice Giles and since we have each come to a firm view as to its disposal there seems to be no reason why we should delay giving judgment.

The appeal raises two questions of fact. The first concerns the relationship which existed at the relevant times between the appellant and the second respondent. It was the second respondent's contention that it acted for the appellant as construction manager under a contract the precise terms of which were certainly somewhat obscure. Thus its view was that it was an agent for the appellant as its disclosed principal. The appellant on the other hand contended that there was between him and the second respondent an engagement which seems at least very similar to a lump sum or fixed price building contract. The differences which emerge from these two positions are, I would think, obvious.

The learned judge considered with care the evidence which had been led before him, and this was very extensive, and, founding upon his view of the credibility of the principal antagonists and upon such documentary evidence as there was, concluded that the arrangement was that for which the second respondent contended. In my view the learned judge was correct in arriving at this conclusion. I think that there would be little point in my simply recapitulating the evidence that was led before him and then expressing a conclusion which, in all substantial respects, would be congruent with his reasons with which, so far as it may be necessary to do so distinctly, I express my agreement.