Gough & Gilmour [2005] NSWSC 1155

New South Wales Supreme Court

CITATION : Gough & Gilmour [2005] NSWSC 1155

HEARING DATE(S) : 29/03/05-31/03/05,01/04/05,04/04/05-08/04/05, 11/04/05-15/04/05,18/04/05,19/04/05, 26/04/05-29/04/05,02/05/05-05/05/05

JUDGMENT DATE : 18 November 2005

JUDGMENT OF : James J at 1

DECISION : Preliminary judgment

CATCHWORDS : CONTRACT – terms of contract – whether breach – whether a percentage availability item to two decimal places found in spreadsheets attached to contract became a term of contract as being warranties by cross-defendant - whether warranties or collateral warranties and whether breach – whether collateral contract – s52 Trade Practices Act - whether cross defendant made certain representations - which cross-claimant relied on – whether reasonable grounds for making representations

LEGISLATION CITED : Trade Practices Act

Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 CASES CITED : Oscar Chess Ltd v Williams [1957] 1 WLR 370

PARTIES : Gough & Gilmour Holdings Pty Limited v Peter Campbell Earthmoving Pty Limited

FILE NUMBER(S) : SC 20491/00

F Corsaro SC/D Villa - Plaintiff COUNSEL : N Cotman SC/I Griscti - Defendant

Minter Ellison - Plaintiff SOLICITORS : Coleman & Greig - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 18 November 2005

20491/00 GOUGH & GILMOUR HOLDINGS PTY LTD v PETER CAMPBELL EARTHMOVING PTY LTD

JUDGMENT

1 JAMES J: These proceedings were brought by the plaintiff Gough & Gilmour Holdings Pty Limited (to which I will refer as "Gough & Gilmour" or "the plaintiff" or "the cross-defendant") against the defendant Peter Campbell Earthmoving Pty Limited (to which I will refer as "PCE" or "the defendant" or "the cross-claimant"). 2 The various claims made by the plaintiff against the defendant in the statement of claim (the last pleading of the plaintiff's claims having been made in a further amended statement of claim filed in April 2005) have almost all been settled. The only outstanding claim by the plaintiff against the defendant which was not settled is part of a claim made in paragraph 19 of the further amended statement of claim, being a claim for what is described as "waiting time" amounting to $14,650.00. 3 PCE, in addition to filing a defence, filed a cross-claim and the hearing of the proceedings was devoted almost entirely to the claims made by PCE in its cross-claim. The last pleading of the cross-claim was made in a document dated 14 April 2005. On the 4 May 2005, at a stage in the hearing when the taking of evidence had been completed, counsel for the cross-claimant had lodged written submissions on the cross-claim and had completed making oral submissions and counsel for the cross-defendant had lodged written submissions on the cross-claim and had virtually completed making oral submissions, I disallowed an application by counsel for PCE for leave to further amend the cross-claim.