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. It is apparent from the appeal that that intention by Mr Beach was at some stage communicated to the defendant, the appellant. It is clear that payments were made by the present appellant to the present respondent, namely, GG Beach (NSW) Pty Ltd but, it is also clear enough that in between the initial contract and the final documentation there were a number of documents issued by the Beach companies which were sloppy and ambivalent and could possibly lead to a result different from that which the plaintiff intended. In the circumstances, his Honour heard a preliminary point: the question of who was the proper plaintiff. In this case he decided in favour of the respondent. His Honour decided the proper plaintiff was GG Beach (NSW) Pty Ltd. On the facts which I have recited, his Honour was clearly entitled to do so. He was not only entitled by virtue of these facts, he was also entitled if one looks at the conduct of the litigation. 2 UNREPORTED JUDGMENTS The present appellant verified his defences on 26 March 1988 and those defences, although over 15 pages long and raising many issues, did not deny that the present respondent was the correct party to the contract. The defences raised by the present appellant admitted that the present respondent was a contracting party to all three contracts. Those defences were prepared after the Chief Executive Officer of the appellant had one or more lengthy conferences with his solicitor. Indeed, there were incorporated into his verified defences the cross-claim whereby the appellant alleged that was the contract with the present appellant. That situation was adhered to by the appellant for four and a half years. When one takes into account the behaviour of the appellant and the facts which I have recited, it seems to me that the decision of his Honour as to who was the proper plaintiff is uncontestably correct. The only other point which seems to arise on the documents on the appeal relates to the quantum of the plaintiff's conduct. No argument was advanced to us that that quantum was incorrect. The point taken on Notice of Appeal must have been abandoned. In these circumstances, in my view, the appeal should be dismissed with costs. GLEESON CJ. I agree and add the following brief observations in relation to the matter of identification of the correct plaintiff. It is perfectly clear that the Beach group of companies set out in the first half of 1977 to procure the results that the business of GG Beach Pty Ltd came to an end on 30 June 1977, in the sense that that business was taken over by the present respondent, which acquired the whole of its assets and undertakings. That was the background against which, some weeks afterwards, the first of the three contracts in question was entered into. It was a contract relating to what was called in the evidence "The Wyoming Job". The arrangements that had been made within the Beach group of companies were such that it would obviously have been the intention of Mr Beach that the contracting party in relation to the Wyoming job should be the present respondent, GG Beach (NSW) Pty Ltd. That intention was communicated by Mr Beach to the Chief Executive of the appellant. The final quote for the job was a quote in the name of the present respondent company. The document that issued from the present appellant in response to that quote named GG Beach Pty Ltd. That was not signed by anybody in the building group, for reasons that are not entirely clear. Thereafter, as Meagher JA has pointed out, there was confusing documentation exchanged between the parties, some of it referring to the respondent and some of it to GG Beach Pty Ltd. This culminated in an admission in the pleadings that the contracting party was the present respondent. In those circumstances, it was well open to his Honour to conclude that the respondent was the proper plaintiff. As Mr Fennell, for the respondent observed, once one reaches that conclusion in relation to the Wyoming job, the inference is almost irresistible that it was the common intention of the parties that the same party would be the contracting party in relation to the other two jobs. Mahoney AP I agree with the judgments of the Chief Justice and Mr Justice Meagher. There is nothing that I wish to add to them. GLEESON CJ. There has been a cross appeal criticising the exercise of discretion by the learned trial judge in relation to the decision he made on the question of interest. URJ LUSTED PTY LTD v GG BEACH (NSW) PTY LTD (Mahoney AP) 3 No error of fact or principle in the exercise of that discretion has been shown. It was a discretionary judgment open to his Honour. The order of the Court is that the appeal is dismissed with costs and the cross-appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: J VAN AALST 10 Instructed by: AUBREY BROWN AND PARTNERS Counsel for the Respondent: A FENNELL Instructed by: FERRY STEELE WALKER