BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: BM Sydney Building Materials Pty Ltd v AWT Building Group (AUST) Pty Ltd; BM Sydney Building Materials Pty Ltd v AWT Building Pty Ltd [2017] NSWCA 177 Hearing dates: 28 June 2017 Decision date: 24 July 2017 Before: Beazley P at [1]; Ward JA at [2], Leeming JA at [3] Decision: In relation to proceeding 2017/85334: 1. Appeal allowed. 2. Set aside the orders made on 15 February 2017 in favour of AWT Building Group (AUST) Pty Ltd and Mr Teng. 3. Remit the proceeding to the District Court for a retrial. 4. AWT Building Group (AUST) Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd's costs of the appeal. 5. Costs of the new trial to be in the discretion of the judge before whom the new trial is conducted.

In relation to proceeding 2017/85330: 1. Appeal allowed. 2. Set aside the orders made on 15 February 2017 in favour of AWT Building Pty Ltd and Mr Teng. 3. Remit the proceeding to the District Court for a retrial. 4. AWT Building Pty Ltd and Mr Teng to pay BM Sydney Pty Ltd's costs of the appeal. 5. Costs of the new trial to be in the discretion of the judge before whom the new trial is conducted. Catchwords: APPEAL - defendants admitted liability on claim for debt but relied on estoppel based on oral agreement - primary judge accepted defendants' evidence and made adverse credit-based findings against plaintiff's witness - whether primary judge failed to have regard to contemporaneous documents - whether primary judge misapprehended evidence said to corroborate oral agreement - whether this Court could give judgment in favour of plaintiff - appeal allowed and retrial ordered. Legislation Cited: Corporations Act 2001 (Cth), s 1308 Cases Cited: Cook's Construction Pty Ltd v Brown [2004] NSWCA 105 Croucher v Cachia [2016] NSWCA 132 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jones v Dunkel (1959) 101 CLR 298 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Category: Principal judgment Parties: 2017/85334 BM Sydney Building Materials Pty Ltd (Appellant) AWT Building Group (AUST) Pty Ltd (First respondent) Wenge Teng (Second Respondent)