Broadlex Services v RCR Resolve FM (No 2) [2015] NSWSC 1514

Supreme Court New South Wales

Medium Neutral Citation: Broadlex Services v RCR Resolve FM (No 2) [2015] NSWSC 1514 Hearing dates: 7 September 2015, 8 September 2015, 9 September 2015, 10 September and 11 September 2015 Decision date: 16 October 2015 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Verdict for plaintiff for $241,378.77 plus interest on its claim. Verdict for defendant for $187,500 plus interest on its cross-claim. Verdicts to be set off. Plaintiff to have judgment for balance after set-off. Catchwords: CONTRACT – claim for payment of debt in respect of unpaid invoices – where plaintiff provided cleaning services to defendant under contract – formation of the contract – whether formed by way of a written offer by plaintiff and acceptance by defendant, or, by written counter-offer by defendant and acceptance by conduct of the plaintiff – effect of an admission by the plaintiff of the latter version of formation – construction of the contract – whether particular cleaning services were within the scope of the 'regular' services to be performed or fell outside the scope and were performable only for an additional fee – whether defendant's general terms and conditions were incorporated into the contract – whether services performed to the required standard – whether certain services which had been paid for were performed at all ESTOPPEL – conventional estoppel – whether parties conducted their relationship on the mutual assumption that the plaintiff would be paid additional remuneration for the contested services DAMAGES – economic loss sustained by defendant in respect of the overarching contract with its principal – whether that loss sustained by reason of the failure of plaintiff to provide extra services without additional remuneration, or by defective performance of those services PRACTICE & PROCEDURE – admissions – application to withdraw refused – whether court may, in any event, decide the question of contract formation on all the evidence, contrary to the pleaded admission – where doing so would work substantial injustice to the other party – whether the evidence supporting the alternative conclusion not persuasive Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Succession Act 2006 (NSW) Cases Cited: Baltic Shipping Company v Dillon, ("the Mikhail Lermontov") (1991) 22 NSWLR 1 Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 Bell Group Ltd (In Liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Clark v Macourt (2013) 253 CLR 1 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Gould v The Mount Oxide Mines Ltd (in Liq) (1916) 22 CLR 490 Holdway v Arcuri Lawyers (2009) 2 Qd R 18 Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 Texts Cited: Handley, Estoppel by Conduct and Election (Sweet and Maxwell, 2006) Category: Principal judgment Parties: Broadlex Services Pty Ltd (Plaintiff / Cross-Defendant) RCR Resolve FM Pty Ltd (Defendant / Cross-Claimant) Representation: Counsel: R C Gration (Plaintiff / Cross-Defendant) T J Breakspear (Defendant / Cross-Claimant)