Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51 Hearing dates: 28 November 2013 Decision date: 17 March 2014 Before: Basten JA at [1]; Barrett JA at [41]; Young AJA at [183] Decision: (1) Allow the appeal and set aside the orders made in the Equity Division on 31 May 2012. (2) Give judgment for the appellant against the respondent in the sum of $151,558.95 plus interest to be determined in accordance with order (3). (3) Direct that the appellant calculate the interest claimed and submit its calculation to the respondent within 10 days from the date of these orders and within 28 days from the date of these orders - (a) if the parties agree on the appropriate amount, file in the registry consent orders giving effect to that agreement by way of appropriate adjustment of the judgment sum; or (b) in default of agreement, each party shall file and serve a document not exceeding two pages that sets forth its calculation with any necessary explanation so that the Court may resolve the matter on the papers and make an appropriate adjustment to the judgment sum. (4) Order that the respondent pay the appellant's costs in the court below and in this Court. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951 (NSW), if not disqualified under s 6(7). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: RESTITUTION - restitution resulting from unenforceable incomplete, illegal or void contracts - where money paid by purchaser to vendor in anticipation of contract - contract never made - claim for recovery by purchaser - principles upon which money recoverable when contract fails to materialise - LIMITATION OF ACTIONS - limitation period for claim in quasi contract - when time begins to run - EVIDENCE - burden of proof - sufficiency of evidence - whether documentary evidence sufficient to prove making of payments pursuant to a particular arrangement Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Limitation Act 1969 (NSW) Cases Cited: Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344 Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd [2014] VSCA 32 CGM Investments Pty Ltd v Chelliah [2003] FCA 79; (2003) 196 ALR 548 Chesworth v Farrar [1967] 1 QB 407 Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 Fazio v Fazio [2012] WASCA 72 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 Guardian Ocean Cargoes Ltd v Banco Do Brasil (The Golden Med) [No 3] [1992] 2 Lloyd's Rep 193 Haxton v Equuscorp Pty Ltd [2010] VSCA 1; 28 VR 499 Lumbers v W Cook Builders Ltd [2008] HCA 27; (2008) 232 CLR 635 Marminta Pty Ltd v French [2003] QCA 541 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587 Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161 Pavey & Matthews Pty Ltd v Paul [[1987] HCA 5; 162 CLR 221] Rowland v Divall [1923] 2 KB 500 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516 Torrens Aloha v Citibank NA (1997) 144 ALR 89 Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 Texts Cited: Benjamin's Sale of Goods (8th ed 2010, Sweet & Maxwell) at [4.006] Category: Principal judgment Parties: Nu Line Construction Group Pty Ltd (Appellant) Peter Fowler (First Respondent) Gabriella Grippaudo (Second Respondent) Representation: Counsel: Mr T S Hale SC/Mr B R Kremer (Appellant) Mr H W M Stitt (Respondents) Solicitors: Diamond Conway (Appellant) Hunter Lawyers (Respondents) File Number(s): CA 2012/203010 Decision under appeal Citation: [2012] NSWSC 587; [2012] NSWSC 816 Before: Ward J File Number(s): 2008/280834