NSW Caselaw
New South Wales Supreme Court
CITATION : Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164
HEARING DATE(S) : 13 October 2010
JUDGMENT DATE : 22 October 2010
JUDGMENT OF : Garling J
DECISION : Appeal dismissed with costs.
CATCHWORDS : APPEAL – Appeal from Local Court of NSW – Appeal by way of rehearing – Whether leave to appeal on questions of mixed fact and law –– Whether matters the subject of the appeal are matters of fact, mixed fact and law, or of law – Obligation for Magistrate to provide adequate reasons. - PRACTICE AND PROCEDURE – Whether plaintiff's pleadings in the Local Court were adequate – Purpose of pleadings and particulars – Whether the defendant in the Local Court knew the nature and extent of allegations made against it – Where the defendant did not object to the adequacy of the plaintiff's pleadings until its written submissions made ten weeks after the conclusion of trial. - CONTRACTS – Whether there was sufficient evidence before the Magistrate to find the existence of an agreement in the terms set out in a written fee proposal – Clause in the agreement provided for termination payments in lieu of notice – Whether clause is penal. - BUILDING AND CONSTRUCTION – Whether consultant engineer was entitled to a variation under the agreement – Whether there was sufficient evidence before the Magistrate to find that there had in fact been a variation to the agreement .
Administrative Appeals Tribunal Act 1975 (Cth) Environmental Planning & Assessment Act 1979 LEGISLATION CITED : Local Court Act 2007 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CATEGORY : Principal judgment
Abdel Naser Qushair v Naji Raffaul [2009] NSWCA 329 AME-UDC Finance Ltd v Austin (1986) 162 CLR 170 Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126 Australian Securities & Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126 Dare v Pulham (1982) 148 CLR 658 Dunlop Nematic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 CASES CITED : Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Pettitt v Dunkley [1971] 1 NSWLR 376 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Public Service Board of NSW v Osmond (1986) 159 CLR 656 RL & D Investments Pty Ltd v Bisby (2002) NSWSC 1082 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 Sims v Wran [1984] 1 NSWLR 317 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 US Manufacturing Co Pty Limited v ABB Service Pty Ltd [2008] NSWSC 705
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