Pegela Pty Ltd v Oates [2010] NSWCA 186

New South Wales Court of Appeal

CITATION: Pegela Pty Ltd v Oates [2010] NSWCA 186

HEARING DATE(S): 27 April 2010

JUDGMENT DATE: 9 August 2010

JUDGMENT OF: Allsop P at [1]; McColl JA at [22]; Young JA at [23]

(1) Appeal allowed. DECISION: (2) Judgment of the primary judge set aside. (3) In lieu there be a verdict for the appellants for $91,000 plus interest. (4) The respondents to pay the appellants' costs both here and at first instance, but with respect to the costs of the appeal have a certificate under the Suitors' Fund Act 1951 if qualified.

CATCHWORDS: Appeal- Civil- whether leave to appeal required- District Court Act 1973, s 127(2)(c)- whether appeal involves $100,000 or more- realistic prospect of success. Contract- Formation of Contract- variation- relevance of subsequent conduct to formation of contract- agreement between parties to share in costs of litigation- initial discussion that appellants bound to pay 12% of the total costs- whether subsequent communications referring to 1/12th rate varied original agreement- whether subsequent conduct further varied any variation back to 12%- relevance of failure of appellant to give oral evidence regarding further variation- whether primary judge erred in holding respondents had overpaid based on binding 1/12 agreement- whether finding as to original agreement glaringly improbable- implied terms- whether implied term obvious, or necessary for the reasonable or effective operation of the contract- whether implied term that agreement net of GST. Procedure- Civil- whether account stated pleaded- whether case run at trial so as to require its consideration.

LEGISLATION CITED: District Court Act 1973, s 127(2)(c) Supreme Court Act 1970, s 101(2)