Australia: Appeals: a use­ful lesson

Last Updated: 3 December 2018
Article by Sean Greenwood

The deci­sion of PND Civ­il Group Pty Ltd v Bas­tow Civ­il Con­struc­tions Pty Ltd [2017] NSW­CA 159 high­lights the dif­fi­cul­ty of rais­ing new issues on appeal, in so far as a par­ty will (gen­er­al­ly) be bound by the way in which it con­duct­ed its case at first instance.

The facts

Bas­tow Civ­il Con­struc­tions Pty Ltd (Bas­tow) con­tract­ed with Aus­grid to under­take work that involved con­struct­ing trench­es in pub­lic roads owned by Gos­ford City Coun­cil (Coun­cil), installing cable ducts in those trench­es and back­fill­ing and seal­ing trench­es. Bas­tow sub­con­tract­ed some of that work to PND Civ­il Group Pty Ltd (PND).

Bas­tow claimed that PND's work was defec­tive and sued it in the Dis­trict Court of New South Wales seek­ing damages.

On the first day of the tri­al a set­tle­ment agree­ment was reached between the par­ties pur­suant to which PND under­took to rec­ti­fy the works in accor­dance with a report that had been pre­pared by Bastow's geot­ech­ni­cal expert. PND was required to com­mence the rec­ti­fi­ca­tion work with­in 3 months of reach­ing agree­ment with the Council.

The set­tle­ment agree­ment also stip­u­lat­ed that if the Coun­cil refused to per­mit PND to car­ry out the rec­ti­fi­ca­tion works then the par­ties were to attend a pri­vate mediation.

PND there­after refused to per­form the rec­ti­fi­ca­tion work and Bas­tow was grant­ed leave to amend its claim to add a claim for dam­ages for breach of the set­tle­ment agree­ment by PND.

PND denied the alle­ga­tion of breach of the set­tle­ment agree­ment. It plead­ed in its defence that Bas­tow had reject­ed PND's endeav­our to have the mat­ter referred to medi­a­tion and was in breach of the set­tle­ment agree­ment itself.

The mat­ter was relist­ed and the hear­ing pro­ceed­ed before the pri­ma­ry judge who upheld Bastow's pri­ma­ry claim for defec­tive build­ing work and award­ed dam­ages in an amount exceed­ing $250,000.

Appeal

PND appealed to the New South Wales Court of Appeal.

PND's pri­ma­ry ground of appeal was that the tri­al judge erred in find­ing that Bas­tow was enti­tled to dam­ages pur­suant to an alleged breach of the sub­con­tract between PND and Bas­tow. This was said to be on the basis that set­tle­ment agree­ment, on its prop­er con­struc­tion, oper­at­ed as an ​"accord and satisfaction".

In short, an accord and sat­is­fac­tion occurs where there is an imme­di­ate and enforce­able set­tle­ment agree­ment under which the plain­tiff agrees to take the defendant's new promise in sub­sti­tu­tion for the exist­ing claim. If so, the orig­i­nal cause of action is extin­guished and can­not be sued upon (by the plaintiff).

On that basis, PND sub­mit­ted to the Court of Appeal that any lia­bil­i­ty that it may have had under the sub­con­tract was extin­guished, and there was sub­sti­tut­ed for that lia­bil­i­ty its oblig­a­tions under the set­tle­ment agree­ment entered into with Bastow.

The prob­lem for PND was that it has not plead­ed (nor even argued in sub­mis­sions) the accord and sat­is­fac­tion point before the tri­al judge. In those cir­cum­stances, Bas­tow sub­mit­ted that PND should be held to its plead­ed case on appeal.

The Court of Appeal agreed with Bas­tow. In that regard, PND was not per­mit­ted to rely on the accord and sat­is­fac­tion point before the Court of Appeal and, it fol­lowed, that ground was not sustained.

PND's appeal was oth­er­wise dismissed.

Sum­ma­ry

It can be seen that par­ties need to make sure that they put all rel­e­vant argu­ments before the tri­al judge or mag­is­trate as the case may be because, as this case shows, par­ties will often not get the oppor­tu­ni­ty to raise new points on appeal. As was explained by the High Court of Aus­tralia in the deci­sion of Met­wal­ly v Uni­ver­si­ty of Wol­lon­gong [1985] HCA 28:

It is ele­men­tary that a par­ty is bound by the con­duct of his case. Except in the most excep­tion­al cir­cum­stances, it would be con­trary to all prin­ci­ple to allow a par­ty, after a case had been decid­ed against him, to raise a new argu­ment which, whether delib­er­ate­ly or by inad­ver­tence, he failed to put dur­ing the hear­ing when he had an oppor­tu­ni­ty to do so.

For further information please contact:

Sean Green­wood, Associate
Phone: + 61 2 9233 5544
Email: stg@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions