Matthews v Busy Bees [2001] NSWSC 581

New South Wales Supreme Court

CITATION : Matthews v Busy Bees [2001] NSWSC 581 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 10798 of 2001 HEARING DATE(S) : 27 June 2001 JUDGMENT DATE : 12 July 2001

Gordon Douglas Matthews (Plaintiff) PARTIES : v Busy Bees Property & Maintenance Pty Ltd (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Local Court JURISDICTION : LOWER COURT 98/99 FILE NUMBER(S) : LOWER COURT Mr I McRae LCM JUDICIAL OFFICER :

COUNSEL : Mr A Rogers (Plaintiff) Mr R Weaver (Defendant) SOLICITORS : Haille & Paine (Plaintiff) Kevin E Worthington (Defendant) CATCHWORDS : Appeal - error of law - past consideration - point not taken at first instance - not available in the circumstances of this case. LEGISLATION CITED : N/A CASES CITED : Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11. In re Casey's Patents. Stewart v Casey. [1892] 1 Chancery 104. DECISION : See Paragraph 17.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 12 JULY 2001

10798 of 2001 GORDON DOUGLAS MATTHEWS v BUSY BEES PROPERTY & MAINTENANCE PTY LTD JUDGMENT 1 Mr & Mrs Spies have carried on business using the corporate vehicle known as Busy Bees Property & Maintenance Pty Ltd (the defendant). The plaintiff and the defendant had been engaged in business together. In 1995, they decided to enter into a business arrangement involving the hiring of videos. 2 The plaintiff leased premises at Moss Vale. The plaintiff was to supply the videos and the defendant was to run the business. There was agreement as to a profit sharing arrangement. There was also agreement that work was to be done both by way of renovating the leased premises and reconditioning the videos. In relation to that work, the defendant was to supply the labour for which it was to be remunerated by the plaintiff. 3 A discussion took place in the office of a solicitor (Mr Boyce). There was agreement that the defendant was to receive $22.50 per hour for renovation work and $16.50 per hour for reconditioning of tapes. 4 The defendant carried out renovation work. It was in the order of three or four weeks work involving twelve to sixteen hours per day. The shop opened for business on 25 August 1995. It closed on Anzac Day 1999, when the plaintiff locked out the defendant. 5 It is the defendant's case that the remuneration for the work done came to be fixed by agreement in the sum of $25,000. There is a written document which bears the date 1 September 1995. It contains the following provision:- "7. In recognition of the operators in put (sic) for the structural leasehold inprovements (sic), the proprietor will agree to having a liability in the sum of $25,000 to the Operators."