New South Wales Court of Appeal CITATION: OAKTWIG PTY LIMITED v WILLIAMS [2008] NSWCA 106 HEARING DATE(S): 19 May 2008 JUDGMENT DATE: 19 May 2008 JUDGMENT OF: Beazley JA at 17; McColl JA at 18; Handley AJA at 1 DECISION: Leave to appeal refused. Summons dismissed with costs. CATCHWORDS: APPEAL - Appellant not entitled on appeal to revive claim disclaimed at trial which might had been answered by evidence. - CONTRACT - success fee payable on defined event - no implied term for fee to be payable on another event. LEGISLATION CITED: Environmental Planning and Assessment Act, s 82A CASES CITED: Suttor v Gundowda 81 CLR 418 PARTIES: Oaktwig Pty Limited (T/as Homeplan Project Design Resources) - Appellant Allan Williams - Respondent FILE NUMBER(S): CA 40472 of 2007 COUNSEL: Mr R Clark for the Claimant Mr J Atkin for the Opponent SOLICITORS: Websters - Claimant Bruce MacDonald Lawyers - Opponent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 1176/2007 LOWER COURT JUDICIAL OFFICER: KEARNS DCJ LOWER COURT DATE OF DECISION: 25 June 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40472/2007 BEAZLEY JA MCCOLL JA HANDLEY AJA MONDAY 19 MAY 2008 OAKTWIG PTY LIMITED (ACN 050 958 736) TRADING AS HOMEPLAN PROJECT DESIGN RESOURCES v ALLAN WILLIAMS CATCHWORDS APPEAL - Appellant not entitled on appeal to revive claim disclaimed at trial which might had been answered by evidence. CONTRACT - success fee payable on defined event - no implied term for fee to be payable on another event. HEAD NOTE The claimant, a firm of architects, sued for a success fee alleged to be payable on the grant of development consent by the Land and Environment Court. The express terms of the oral contract, as found by the trial judge, provided for the fee to be payable on the grant of development consent by the Council. A claim in quantum meruit was expressly disclaimed at the trial, as was an implied term providing for the fee to be payable on a grant of development consent by the Court. On the application for leave to appeal, which was treated as the hearing of the appeal, the claimant attempted to rely on the implied term that had been disclaimed. HELD: The claimant was not entitled to rely on that implied term on appeal because the opponent might have led further evidence at the trial to rebut that term, and in any event the term was inconsistent with the express terms of the contract. ORDERS Summons dismissed with costs. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40472/2007 BEAZLEY JA MCCOLL JA HANDLEY AJA MONDAY 19 MAY 2008 OAKTWIG PTY LIMITED (ACN 050 958 736) TRADING AS HOMEPLAN PROJECT DESIGN RESOURCES v ALLAN WILLIAMS Judgment 1 HANDLEY AJA: This is an application for leave to appeal by a plaintiff, an architect, who had sued a developer for professional fees. The trial judge dismissed the claim except for a quantum meruit amount for time spent in connection with an appeal to the Land and Environment Court which was not in dispute. 2 The claimant seeks leave to re-agitate the claim for substantial fees for designing the development which was ultimately approved by the Court. The claim as pleaded was a common money count for work done. The particulars supplied prior to trial indicated that the plaintiff was relying upon an express oral contract. It was common ground that there was such a contract but there was a dispute as to its terms both as to the event on which the success fee was payable, what the amount of that fee would be, and whether there was an entitlement to reimbursement for printing costs. There is no longer any dispute as to amount, the claimant accepting the judge's findings that the rate was $2,000 per unit plus GST with no right of reimbursement for printing costs. 3 The evidence about the oral contract was given by the plaintiff, by the defendant and by a Mr Hill. The latter was the defendant's potential financier if development approval was obtained, and a possible purchaser of the site with the benefit of the approval. 4 The trial judge also had exhibit 1. 5 Mr Clark, who appeared for the claimant in this Court, but did not appear below, has submitted that the judge made illegitimate use of exhibit 1. It was prepared by Mr Hill and signed by the plaintiff after it had been amended by him in material respects. It post-dates the contract by some months. Mr Clark submitted that the document was totally irrelevant and should have been disregarded. 6 I am unable to accept this submission. The document was an admission by the plaintiff of the terms of the oral contract. 7 The plaintiff attempted to avoid the probative force of Ex 1 by saying that he had signed it under duress. He said this was the only way he could receive the interim payment which was due to him under the contract. The judge did not accept this part of the plaintiff's evidence. 8 The document appears to establish that the agreed fee was $2,000 per unit plus GST. It also defined the event or events on which the success fee would be payable. It provided: Should D/A be not approved by Parramatta Council, no further fee payable other than that paid 6/3/02. Should D/A be approved or approved in amended form by Parramatta Council, balance of 55,000 is due and payable. 9 In the event the Council rejected the application. The claimant continued to be active on behalf of the developer. He sought to obtain the Council's consent by lodging a review application under s 82A of the Environmental Planning and Assessment Act and an appeal to the Court. The Council rejected the review application but the Court allowed the appeal and the development was approved. 10 There may have been a basis for a claim in quantum meruit as a result of the approval of the development application for plans prepared by the claimant. However in opening counsel then appearing for the claimant disclaimed any reliance upon a quantum meruit. Nothing more was payable under the express terms as found by the Judge. The only other avenue for the plaintiff at the trial was an implied term. 11 Although the plaintiff's particulars had not relied on an implied term, his case was conducted on a wider basis without any objection based on the pleadings or the particulars. The judge considered a number of possible implied terms and rejected all of them. Only one implied term has been urged on us by Mr Clark, namely that the success fee would be payable on approval by the Court. 12 The judge dealt with that question as follows. He said: That then left two possibilities as to when the balance of the fee would be payable. One was when the plans were approved by the council and the other was if not approved by the council when approved by the Land and Environment Court. I asked counsel for the claimant whether he contended for the latter and he responded no. That was quite proper in my view. The matter of the Land and Environment Court had not entered the parties' minds in any way when the first contract was made and it would not be right to imply a term that depended on a result in the Land and Environment Court. The remaining alternative is that the balance of the fee was due to the plaintiff when the council approved the plans. That would be a sensible term to imply to give business efficacy to the contract and it is consistent with exhibit 1. 13 The implied term found by the judge was an express term and an implied term analysis was inappropriate. However the passage indicates that the implied term now pressed by Mr Clark was expressly disclaimed by counsel for the plaintiff at the trial. 14 In some cases illustrated by Suttor v Gundowda Pty Ltd 81 CLR 418 an appellate court can entertain a new point of law which has not been relied on in the court below and sometimes even a point that has been disclaimed below. However a claim to a new implied term cannot be raised on appeal where that claim may have been answered by other evidence if it had been raised at this trial. That is so in this case which is therefore outside this exception to the general rule that parties are bound by their conduct at the trial. 15 Moreover it cannot be said, in my judgement, that the implied term would be consistent with the express terms. A success fee payable on a nominated event is inconsistent with an implied term that the same fee will be payable on a different event. A claim in quantum meruit may be available in those circumstances but this was disclaimed. 16 In my opinion the trial judge was substantially correct for the reasons that he gave and I would refuse leave to appeal. I would propose that the summons be dismissed with costs. 17 BEAZLEY JA: I agree. 18 MCCOLL JA: I also agree. 19 BEAZLEY JA: The order of the court is that proposed by Handley AJA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.