St Hilliers Constructions (NSW) Pty Ltd v Peter Kelly Flooring Pty Ltd [2002] NSWSC 270

New South Wales Supreme Court

CITATION : St Hilliers Constructions (NSW) Pty Ltd v Peter Kelly Flooring Pty Ltd [2002] NSWSC 270 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5858/01 HEARING DATE(S) : 5 April 2002 JUDGMENT DATE : 5 April 2002

PARTIES : St Hilliers Constructions (NSW) Pty Ltd Peter Kelly Flooring Pty Ltd JUDGMENT OF : Davies AJ at 1

COUNSEL : Mr P J Bambagiotti for the Plaintiff Mr C J Millard for the Defendant SOLICITORS : O'Hara & Company Solicitors & Attorneys for the Plaintiff Business Law Office Solicitors & Notaries for the Defendant CATCHWORDS : Contract - offer of settlement - misunderstanding of terms by one party - whether unilateral unexpressed reservation vitiates agreement CASES CITED : Taylor v Johnson (1983) 151 CLR 422 DECISION : See paragraphs 21 and 24 of the judgment.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Davies AJ

Friday, 5 April 2002

5858 / 01 St Hilliers Constructions (NSW) Pty Ltd v Peter Kelly Flooring Pty Ltd Judgment 1 His Honour: These proceedings seek a declaration that proceedings in the District Court of New South Wales were settled between the parties on 2 April 2001. 2 Those proceedings had been brought by Peter Kelly Flooring Pty Ltd as subcontractor against a contractor, St Hilliers Constructions (NSW) Pty Ltd, in respect of work done and materials provided at the Chesalon Nursing Home, Woonona. 3 Peter Kelly Flooring Pty Ltd had sued for the balance of the contract price owing, a sum of $181,639.94. That sum included a retention sum of $7,500, which may not at the time have been strictly payable, for a provision of the contract provided for retention for a period of time against the contingency that problems in the work done might arise. 4 Negotiations were carried on between the solicitors for the parties with a view to achieving a settlement and certain payments were made. A letter from the solicitors for Peter Kelly Flooring of 3 July 2000 made an offer to settle for $172,000, subject to release of retention deposits. 5 There was a response by the solicitors for St Hilliers Constructions referring to moneys paid and offering a further sum, that amount to include the retention moneys in the sum of $7,450, which I assume was the total of the retention moneys then outstanding. 6 A further letter from the solicitors for Peter Kelly Flooring of 1 August 2000 referred again to payments and the outstanding balance. It referred to the claim for $181,639.94, the balance outstanding of which was then said to be $48,666.44. 7 On 12 March 2001 the solicitors for Peter Kelly Flooring wrote to say that their client would settle the action by the payment to it of $28,500 plus $4,500. The total of those sums was $33,000. 8 Subsequent to that letter, there was an offer by the solicitors for St Hilliers Constructions to pay $31,500 and that was countered by a telephone offer made by the solicitor for Peter Kelly Flooring to accept the sum of $32,500. According to the affidavit of the solicitor for St Hilliers Constructions, the solicitor for Peter Kelly Flooring, Mr Moffatt, said: "My client will accept the sum of $32,500 and that is the last offer we will make."