Metro Edgley Pty. Limited & Anor. v. M.K. & J.A. Roche Pty. Limited & Ors. [2007] NSWCA 160

New South Wales Court of Appeal

CITATION: Metro Edgley Pty. Limited & Anor. v. M.K. & J.A. Roche Pty. Limited & Ors. [2007] NSWCA 160

HEARING DATE(S): 29 and 30 May 2007

JUDGMENT DATE: 5 July 2007

JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Campbell JA at 153

DECISION: 1. Appellants' appeal dismissed with costs. 2. Appeal of Roche and the Roche brothers dismissed with costs. 3. Appeal of the Roche parents allowed. 4. Order that the appellants pay the costs of the appeal of the Roche parents, and that they have a certificate under the Suitors' Fund Act if otherwise eligible. 5. The costs order below relating to the Roche parents set aside, and in lieu thereof order that the appellants pay the costs of the Roche parents of the proceedings from 7 August 2006.

CATCHWORDS: CONTRACT - Building Contract - Whether practical completion achieved - Construction of conditions precedent - Effect of certificate of independent certifier - Effect of automatic rescission of associated agreement - ESTOPPEL - Conventional estoppel - Whether party alleged to be estopped played relevant part in adoption of assumption - Whether estoppel could affect guarantor - GUARANTEE - Whether guarantors liable where principal contract automatically rescinded - PRACTICE - Commercial list - Identification of issues - Need to avoid surprise - Whether issue open to be contested - COSTS - Where some guarantors could be affected by estoppel and other not affected - Whether separate representation reasonable - Whether costs of separate representation recoverable.

Amalgamated Investment & Property Co. Limited v. Texas Commerce International Bank Limited [1982] QB 84 Coghlan v. S.H. Lock (Australia) Limited (1985) 4 NSWLR 158 CASES CITED: House v. The King (1936) 55 CLR 499 Mackay v. Dick (1881) 6 App Cas 251 Nangus Pty. Limited v. Charles Donovan Pty. Limited [1989] VR 184 Sargent v. ASL Developments Limited (1974) 131 CLR 634