B & W Windows (Aluminium) Pty Ltd v Marcellos [2014] NSWLC 15

Local Court New South Wales

Medium Neutral Citation: B & W Windows (Aluminium) Pty Ltd v Marcellos [2014] NSWLC 15 Hearing dates: 17/07/2014, 28/08/2014 Decision date: 12 September 2014 Jurisdiction: Civil Before: Magistrate Stapleton Decision: Dismissal of the plaintiff's claim Catchwords: CONTRACTS - assignability - unenforceable contract - claim in quantum meruit - unlicensed builder - work performed under supply and install contract - unlicensed builder sells assets to another - whether claim in quantum meruit assignable Legislation Cited: Conveyancing Act 1919 Home Building Act 1989 Uniform Civil Procedure Rules 2005 Cases Cited: Equuscorp Pty Ltd v Haxton [2012] HCA 7 Lumbers & Anor v W Cook Builders Pty Ltd (in liquidation) (2008) 232 CLR 635 O'Connor v LEAW Pty Ltd (1997) 42 NSWLR 285 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Shaw v New South Wales [2012] NSWCA 102 Texts Cited: Butterworths Concise Australian Legal Dictionary (1998, 2nd edition) Category: Principal judgment Parties: B & W Windows (Aluminium) Pty Ltd (ACN 164 323 237) (the plaintiff) Scott Marcellos (the defendant) Representation: Mr R Dalgleish for the plaintiff Mr G Drew for the defendant File Number(s): 2014/158812 Publication restriction: Nil

Judgment

Reasons for Decision 1The defendant moves the Court pursuant to the Uniform Civil Procedure Rules, r 13.4(1)(b) for summary dismissal of the plaintiff's claim on the ground that no reasonable cause of action is disclosed. To succeed the defendant must establish that the plaintiff's claim is so obviously untenable or groundless that there is a high degree of certainty it will fail if allowed to go to trial: Shaw v New South Wales [2012] NSWCA 102. The defendant conceded that the power may only be exercised with the utmost caution and only in very clear cases. 2The facts (properly uncontested on this application) are that in March 2013 DW509 Pty Ltd agreed to supply and install windows and doors in the defendant's home for a price, the windows and doors were supplied and installed, and the defendant failed to pay $19,000 of that price to DW509. The plaintiff pleads that by written agreement dated 1 July 2013 "it took an assignment of the debt owed by the defendant to DW509 Pty Ltd and any other legal chose in action DW509 was entitled to receive or claim from the defendant" and that "as assignee it is entitled to claim reasonable remuneration for work done and materials supplied to the defendant by way of restitution, compensation or quantum meruit." 3The plaintiff has not sued on the agreement between DW509 and the defendant. In written submissions the plaintiff conceded that by reason of s 10(1) of the Home Building Act 1989, DW509 as an unlicensed contractor is not entitled to damages or to enforce any other remedy in respect of a breach of contract. 4The parties provided me with written submissions and spoke to those submissions in argument. The plaintiff's argument was that DW509 had assigned to it, not its contractual rights against the defendant (because it had none), but its right to make a claim in quantum meruit against the defendant. The defendant argued that a claim in quantum meruit is a bare right of action which is not capable of assignment and that the written agreement could not be construed as assigning a right to a claim in quantum meruit to the plaintiff in respect of the agreement between DW509 and the defendant.