LUSTED PTY LTD v GG BEACH (NSW) PTY LTD [1994] NSWCA 188

LUSTED PTY LTD v GG BEACH (NSW) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY AP and MEAGHER JA 15 July 1994, 15 July 1994

[1994] NSWCA 188 FACTS:

The appellant/defendant appealed against a decision of Phelan DCJ against it on grounds that the wrong company in the respondent/plaintiff's group was sued and that the amounts claimed under three agreements were not reasonable.

HELD:

(1) At no stage prior to this appeal did the appellant contest the correctness of the respondent company as the proper plaintiff. In these circumstances his Honour's finding on the proper plaintiff is correct.

ORDERS: (1) Appeal dismissed with costs.

Gleeson CJ In this matter I will ask Mr Justice Meagher to give the first judgment.

Meagher JA This matter is an appeal from a verdict by Judge JB Phelan of the District Court in favour of the respondent, GG Beach (NSW) Pty Ltd against the defendant, Lusted Pty Ltd. The agreements on which the plaintiff relied were three agreements which were entered into in or about August 1977.

The plaintiff claimed, in all, the sum of $20,290.52. A statement of claim was issued on 27 July 1983. His Honour gave two judgments: an interim judgment of 13 March 1991 and a final judgment on 5 December 1991.

There are two grounds of appeal, in effect. One is that the wrong plaintiff was sued; of the various Beach companies, it ought not be GG Beach (NSW) Pty Ltd, but simply GG Beach Pty Ltd. The other ground of appeal was that the amounts claimed were not reasonable.

As far as the first ground is concerned, the history of this is that each of the three contracts on which the plaintiff relies were building contracts. It is not in dispute that building contracts were entered into with one of the Beach companies. It is conceded that the Chief Executive of the Beach group of companies had intended that the contracts should be entered into by the plaintiff.