AWADALLAH v A W AND P BROWN PTY LTD and ANOR [1998] NSWCA 28

AWADALLAH v A W & P BROWN PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, COLE and STEIN JJA 28 April 1998, 28 April 1998 [1998] NSWCA 28

Appeal and New Trial — new trial — Point not taken below — Claim for moneys due for work done and materials supplied pursuant to agreement said to have been made with two defendants — Agreement admitted in Defence and Cross-Claim — Verdict and judgment against defendants — On appeal appellant seeks to assert not party to agreement and did not give instructions to solicitor — whether point open to be raised on appeal — Whether Court of Appeal has inherent jurisdiction to set aside judgment and order new trial.

Powell JA The Court has before it today an appeal by one only of two Defendants in an action which was commenced in the District Court in May 1991. In its Statement of Claim the First Respondent, which was a building company, sought to recover from the Appellant and her former husband ("'the Second Respondent') the sum of some $28,900 odd, together with interest, the principal sum being what was said to be the balance owing for building work and materials supplied by the First Respondent to the Appellant and the Second Respondent, that work being work in the nature of alterations and extensions to the then matrimonial home of the Appellant and the Second Respondent.

The Statement of Claim was, in the first instance, served only upon the Appellant. She, so it would seem, retained the services of a firm of solicitors, Messrs Coyne & Whittemore, which firm wrote to the First Respondent's solicitors in May 1991 informing the First Respondent's solicitors that the Appellant had retained them and seeking particulars on behalf of the Appellant in relation to the claim made by the First Respondent. To that letter the First Respondent's solicitors replied some few days later enquiring whether Messrs Coyne & Whittemore had instructions to accept service on behalf of the Second Respondent. The material which is before the Court does not indicate what, if any, reply was given to that letter, but such material as is before the Court would tend to indicate that ultimately service was effected on the Second Respondent some time later.