NSW Crushing & Screening Pty Ltd v Dial a Dump Industries Pty Ltd [2014] NSWDC 133

District Court New South Wales

Medium Neutral Citation: NSW Crushing & Screening Pty Ltd v Dial a Dump Industries Pty Ltd [2014] NSWDC 133 Decision date: 11 July 2014 Before: Cogswell SC DCJ Decision: (1) The Court answers the questions raised by the parties in the Notice of Motion filed in court on 12 March 2014 pursuant to UCPR Rule 28.2 separately from any other question and before all other issues in the proceedings, as follows: (i) Was there an agreement between the plaintiff and the defendant in the terms pleaded by the plaintiff in paragraph 3 of its Further Amended Statement of Claim? Answer: Yes. (ii) If no to question 1, was there an agreement between the plaintiff and the defendant in the terms pleaded by the defendant in paragraph 3 of its Amended Defence? Answer: Not applicable. (iii) If no to question 1 or yes to question 2, and further to question 1, is the defendant estopped as claimed by the plaintiff in paragraph 39C of its Further Amended Statement of Claim, from: (a) denying the terms of the Agreement as pleaded by the plaintiff in paragraph 3 of its Further Amended Statement of Claim; and/or (b) denying the plaintiff's claim for restitution of any overpayments made by it to the defendant? Answer: Yes to questions 3(a) and 3(b). (iv) If yes to either questions 3(a) or 3(b), did such estoppel cease beyond 6 or alternatively 13 January 2012 as pleaded in paragraph 23(d) of the Amended Defence? Answer: No. Catchwords: CIVIL LAW - Contract - hasty arrangement for hire of large machinery - dispute over terms of contract - whether verbal agreement to vary standard terms and conditions? - principle of objectivity in construing contracts - terms of phone conversations in issue - estoppel - estoppel in pais. Cases Cited: Ian Clive Simpson v B.J. Metro Pty Limited [2007] NSWSC 1403. Masters v Cameron [1954] HCA 72; 91 CLR 353. Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165; 79 ALJR 129. Waltons Stores (Interstate) Limited v Maher [1988] HCA 7; 164 CLR 387; 62 ALJR 110. Category: Separate question Parties: NSW Crushing & Screening Pty Ltd (plaintiff) Dial a Dump Industries Pty Ltd (defendant) Representation: Counsel: MR Gracie (plaintiff) SJ Philips (defendant) Solicitors: Balmain Lawyers (plaintiff) Christopher Biggs Solicitors and Attorneys (defendant) File Number(s): DC 2012/00279953