Grade One Monitoring Pty Ltd trading as Artemis Security Solutions v Sargent Security (Aus) Pty Ltd [2010] NSWSC 1377

New South Wales Supreme Court

CITATION : Grade One Monitoring Pty Ltd trading as Artemis Security Solutions v Sargent Security (Aus) Pty Ltd [2010] NSWSC 1377

HEARING DATE(S) : 17 November 2010

JUDGMENT DATE : 7 December 2010

JURISDICTION : COMMON LAW

JUDGMENT OF : Davies J

DECISION : (1) The Summons is dismissed. (2) The Plaintiff is to pay the Defendant's costs.

CATCHWORDS : APPEAL - from Local Court - errors of law alleged - whether there was any evidence of breach of contract and/or loss and damage. CONTRACT - general contractual principles - implied terms - breach of contract - contract for security services - whether implied term to ensure no loss - no error by Magistrate shown.

CATEGORY : Principal judgment

CASES CITED : BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337

PARTIES : Grade One Monitoring Pty Ltd t/as Artemis Security Solutions (Applicant) Sargent Security (Aus) Pty Ltd (Respondent)

FILE NUMBER(S) : SC 2010/149231

COUNSEL : L Katsinas (Applicant) L Morgan (Respondent)

SOLICITORS : JT Law (Applicant) Moray & Agnew (Respondent)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 10243/09

LOWER COURT JUDICIAL OFFICER : Gilmore LCM

LOWER COURT DATE OF DECISION : 18 May 2010

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES J

7 DECEMBER 2010

2010/149231 GRADE ONE MONITORING PTY LTD T/AS ARTEMIS SECURITY SOLUTIONS V SARGENT SECURITY (AUS) PTY LTD

JUDGMENT

1 A builder, Link Constructions Pty Ltd, contracted with the Plaintiff, Grade One Monitoring Pty Ltd, for Grade One to provide security services at one of Link Constructions' building sites in Botany Street, Randwick. Grade One then entered into an arrangement with Sargent Security (Aus) Pty Ltd for Sargent to provide the security services for the period 2 March 2009 to 30 April 2009. 2 On 16 April 2009 21 hot water systems were stolen and removed from the property. 3 Link Constructions sent a letter to Grade One effectively claiming damages of $31,500 plus GST to replace the hot water units and rectify the damage caused by their theft. Ultimately, Link Constructions went into administration and it does not appear that any money has passed between Grade One and Link Constructions in respect of the contract for security services or for the replacement of the hot water systems. 4 When Sargent claimed its fees of $46,000 from Grade One, Grade One sought to offset the amount of $34,650 (the total claimed by Link Constructions including GST) by alleging a breach of contract on the part of Sargent. 5 The Magistrate who heard the proceedings found against Grade One and awarded Sargent the full amount of its claim of $46,000. Grade One now seeks leave to appeal on the basis that the Magistrate made errors of law. Although the appeal grounds in the Summons raised 6 matters the Plaintiff abandoned 5 of these at the hearing and sought leave to amend one of the abandoned grounds and rely upon that. No objection was taken to the proposed amendment. 6 The 2 grounds relied upon by the Plaintiff were these: (1) The decision in the Court below is founded upon areas of law in which his (sic) Honour erred in finding that: