HIRSCH REES & ASSOCIATES PTY LIMITED v THE TRUSTEES OF THE MORIAH COLLEGE BUILDING FUND [1998] NSWCA 107

HIRSCH REES & ASSOCIATES PTY LIMITED v THE TRUSTEES OF THE MORIAH COLLEGE BUILDING FUND

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, SHELLER JA and FITZGERALD AJA 17 August 1998

[1998] NSWCA 107

ISSUE WHETHER FORMATION OF CONTRACT FOR SETTLEMENT OF PROCEEDINGS WAS SUBJECT TO EXCHANGE OF EXECUTED DEEDS — TRIAL JUDGE HOLDS NO CONCLUDED CONTRACT — RELEVANT CONSIDERATIONS

Priestley JA. This is a summons for leave to appeal from orders made by Rolfe J in proceedings in which Hirsch Rees & Associates Pty Ltd (HRA) is claiming fees for architectural services from The Trustees of The Moriah College Building Fund (the Trustees).

The summons was before a two judge bench last week and after fairly full argument was stood over until today to be heard by a bench of three so that the court if it felt a grant of leave were appropriate would be able to deal with the matter as on appeal, after full argument. In the intervening week the parties have agreed on and have put before the court today all the materials that need to be before the court for that full argument to take place, and the court has heard full argument from HRA on the first, and essential, step in its argument.

HRA's proceedings for fees for architectural services arose from the building of the Moriah College High School at Queens Park in Sydney's Eastern Suburbs. In these proceedings (the HRA proceedings) the Trustees cross-claimed against HRA. All the claims and cross-claims with the exception of HRA's claim for fees and the Trustees" claim for repayment of sums allegedly overpaid were settled in 1993.

The builder, Reed Constructions Pty Limited, brought separate proceedings against HRA and the Trustees who cross-claimed against each other in those proceedings. The proceedings by the builder against HRA and the Trustees and the cross-claims in those proceedings were settled on 19 December 1997.