Damien v JKAM Investments Pty Ltd

Court of Appeal (NSW)|2015-11-12|Before: Gleeson JA, Simpson JA, Rein J, Darke J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

GLEESON JA: I agree with Tobias AJA.
SIMPSON JA: I agree with Tobias AJA.
TOBIAS AJA: This appeal arise out of proceedings concerning a property at Ironbark Avenue, Camden ("the Property") owned by the appellant, Mr Karl Damien ("Damien"). A number of different parties claimed an interest in the Property and the disputes between them were heard and determined by Darke J (see Champion Homes Sales Pty Ltd v JKAM Investments Pty Ltd [2014] NSWSC 952). His Honour split off for separate determination by Rein J a cross‑claim brought by the respondent, JKAM Investments Pty Ltd ("JKAM") and a second cross‑claim brought by Damien against JKAM.

The Pleadings

In its Further Amended Cross-Claim filed on 12 March 2015, JKAM relevantly pleaded as follows: "1. Around early 2012 the Third Cross-Defendant ('Damien') entered into negotiation with the First Cross-Claimant ('JKAM'). 2. Around July/August 2012, JKAM commenced carrying out the building works without any written contract for such works. 3. Around July/August 2012 Damien's legal representative Dean Alcorn was to prepare the documents for execution between Damien and JKAM. … 5. On 10 December 2012 Damien executed a Deed ('the Deed') with JKAM outlining the terms of the agreement between Damien and JKAM. 6. On 21 December 2012 Damien exchanged a Contract for Sale for the Camden Property ('the Contract') and Mortgage with JKAM. … 8. Around March 2012 Champion Homes Sales Pty Ltd being the previous builder on the Camden Property ('Champions') had knowledge that Damien appointed a new builder being Architectural Collections Pty Ltd. 9. Around May 2013 Damien was attempting to refinance through St George Bank. The only debts on the Camden Property that were to be paid upon settlement was a debt to the first mortgagee being NAB and a payment to the builder in the sum of $555,000.00 … 22. Further JKAM claims the sum of $555,000.00 against Damien being monies due for unpaid tax invoice assigned to JKAM on 27 August 2014 by [ACPL] particulars of the tax invoice and assignment having previously been supplied to Damien. …"
As to the relief claimed by JKAM, it relevantly sought an order for specific performance of the Contract for Sale. In the event of specific performance not being ordered, JKAM sought in the alternative a number of orders of which the following are presently relevant: "16. An order for payment by Damien to JKAM the sum of $555,000 being the assignment of debt from [ACPL] to JKAM for works representing the balance of the construction works undertaken at the Camden Property plus interest pursuant to section 100 of Civil Procedure Act 2005 (NSW) from the 7 March 2013 the date of the Tax Invoice issued by [ACPL]. 17. An order for the refund to JKAM of the sum of $528,000 being the deposit on the Contract of Sale dated 21 December 2012 plus interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW) on that sum calculated from the 21 December 2012."
Two points need to be made at the outset with respect to this pleading. The first is that the Court was informed, and it was not in dispute, that JKAM's claim for specific performance of the Contract for Sale had been "deferred". The second is that at the hearing before the primary judge, JKAM abandoned the orders sought in paragraph 17. In this Court, as well as before the primary judge, it was made clear on behalf of JKAM and duly recorded that there was only one claim for the cost of the building works ($528,000) and that if the present claim was upheld, no further claim for that cost would be made.
In his Defence to JKAM's First Amended Cross-Claim filed on 29 October 2014, Damien did not plead to paragraph 2, denied paragraph 9 and did not plead to paragraph 22. It was not suggested that there was any relevant difference between JKAM's First Amended Cross-Claim and its Further Amended Cross-Claim dated 12 March 2015.
Damien's Amended Second Cross-Claim was filed on 27 June 2014. It relevantly pleaded as follows: "2. On or around May 2012 [Damien] and [JKAM] entered an oral agreement. Included in the agreement were the following terms: i. [JKAM] would finish construction on the property owned by [Damien] located at 8-10 Ironbark Avenue, Camden NSW ('the property') by 31 December 2012. ii. As consideration and in return, [JKAM] would be given the option of purchasing the said property for $2,081,000.00 from [Damien]. iii. As further consideration, if [JKAM] did not take up the option to purchase the property, [Damien] would pay [JKAM] the sum of $480,000.00 for the cost of the construction work on the said property. 3. Sometime in about July 2012 [JKAM] commenced construction work on the said property. 4. On 10 December 2012, the aforesaid oral agreement was varied and also put into writing by way of a deed. Inter alia, the deed extended the time for [JKAM] to finish the construction work, and also extended the time to take up the option to purchase the said property."
In its Defence to that Amended Second Cross-Claim, JKAM denied the allegations in paragraphs 2(i),(ii) and (iii), although it appears on one view that the denial did not extend to the opening sentence of paragraph 2. Nevertheless, there is some difficulty in accepting that an oral agreement was entered into by Damien with JKAM in May 2012, as the latter was not incorporated until 20 June 2012. At all material times ACPL was incorporated and, as will appear, had in fact in December 2011 tendered for the relevant construction work on the Property.
In response to paragraph 4 of Damien's Amended Second Cross-Claim, JKAM denied that there was ever an oral agreement between the parties. In paragraph 18, it alleged that Damien had made no payments "to the builder for the completion of the construction works on the Camden property being $555,000 (GST incl)".
It was common ground that the amount of $555,000 was an error, and that the correct amount, incl. GST, was $528,000. The pleading does not identify "the builder" so referred to.

The Relevant Evidence

In Damien's affidavit sworn 18 March 2014, he deposed at paragraph 16 to a conversation between himself and Mr Elia in apparent support of the allegations contained in paragraph 2 of Damien's Amended Second Cross-Claim which I have recorded at [12] above. That conversation was stated to have occurred "in around May 2012". The relevant part of the conversation was as follows: "I said: 'If you buy the property, you will have to pay out my loan from NAB, which is $1,706,000.00 in total. I will also need to pay Chris Haddad $75,000.00 commission and me $300,000.00, the total sale price will be $2,081,000.00. But settlement must take place by 31 December 2012 and obviously the construction work must be finished well before the end of the year'. Joe said: 'What if I am unable to settle and I can't go ahead and buy the property after having completed the construction work under the DA'. I said: 'What do you suggest?' He said: 'All you have to do is give me $480,000. That is what I will charge you for all the work that I have done to finish the DA work'. I said: 'I agree to that'." Mr Elia did not in his affidavit respond to this evidence.
It will be apparent that there are some differences between the version of this conversation set out, in particular, in paragraph 2(ii) and (iii) of Damien's Amended Second Cross-Claim and the conversation relating to when the $480,000 would be paid deposed to by Mr Elia. Nevertheless, the general thrust of the evidence is to the effect that there was an oral agreement that JKAM would purchase the Property but that, in the event that the purchase did not proceed because any contract for sale was terminated, then Damien would be liable to pay the $480,000 for the building work which, it was common ground, commenced in or about July or August 2012.
Given the manner in which JKAM pleaded the relevant part of its claim, the factual issue which the primary judge needed to determine was the identity of the company which performed the building work. As I have indicated, he found that it was ACPL. On that basis then there was no dispute but that the debt had been validly assigned to JKAM. Nevertheless, although not adverted to by the primary judge in his reasons, it was Damien's case before this Court that even if the debt had been validly assigned to JKAM, it was not due and payable so long as the Contract for Sale remained on foot. However, this aspect of Damien's case was undermined by the agreed fact that on the second day of the hearing before the primary judge, Damien had terminated the contract and brought it to an end. In these circumstances, subject to one matter, counsel for Damien reluctantly conceded that his client was liable to JKAM for the amount claimed.
That one matter was the assertion on behalf of Damien that there was still an outstanding claim by JKAM for specific performance of the Contract for Sale which, so the Court was informed, had been "deferred". That deferral was no doubt because the first mortgagee of the Property, National Australia Bank, had entered into possession and was no doubt seeking to sell the Property. Further, there were a number of caveats lodged by other parties claiming that they were owed money by Damien. Nevertheless, upon the basis that the primary judge's judgment with respect to the claim for $528,000 stands, there can be little doubt that that fact alone would be telling against the exercise of any discretion to grant JKAM specific performance of the Contract for Sale. It follows that it is reasonable to infer that any continued claim by JKAM for specific performance of the Contract for Sale would be speculative at the very least and can, therefore, be disregarded. The essential fact is that the Contract for Sale had been terminated by Damien which, as I have indicated, undermines the basis of the defence which was sought to be made in response to the primary judge's finding that as a consequence of the assignment, Damien was liable to JKAM for the amount of $528,000.
Notwithstanding the foregoing which is probably sufficient to dispose of the appeal, I shall deal with the relevant grounds of appeal, some of which were wisely abandoned. Those that remained were the following: "1. His Honour erred by finding that the appellant contracted with [ACPL] for the sum of $528,000. 2. His Honour erred by finding that there was a debt due to [ACPL], that was assigned to the respondent, and that the appellant was liable for the debt. 3. His Honour erred by taking into account post contractual conduct to determine the terms of the agreement between the appellant and [ACPL]. … 5. His Honour erred by not permitting the appellant to raise the defence that the appellant had contracted with a different entity to do construction work to the value of $528,000. 6. His Honour erred by not allowing the appellant to tender email correspondence between the appellant and Joseph Elia. 7. His Honour erred by making findings of fact not supported by evidence."

Ground of Appeal 6

It is appropriate to deal first with Ground of Appeal 6. The email correspondence in question fell into two groups. The first was constituted by an email dated 18 July 2012 from Damien to Mr Elia. That email was not essentially different in content to paragraph 16 of Damien's affidavit, although the sale price for the Property was said to be $1.680 million which was obviously later renegotiated. It further provided that in the event that the building on the Property was not fully tenanted by 19 October 2012, then "the purchaser" had the right to rescind the contract and, in that event, Damien would pay the "the purchaser" $480,000 plus GST for "the building works completed at the Property". Damien was then unaware as to the identity of the purchaser. However, in a responsive email dated 19 July 2012, Mr Elia nominated JKAM as the purchasing company of the Property. The second group of emails which his Honour rejected and which were marked MFI1, comprise documents the provenance of which was never established in evidence before the primary judge. It follows that they were correctly rejected.
Although the first group of two emails to which I have referred were admitted without objection as annexures to Mr Elia's affidavit, his Honour (at [16]) stated that he "rejected the tender of documents that had previously been admitted". Presumably this included the emails in question.
The basis for the rejection of the tender was that counsel for Damien wished to rely on the emails to support an argument to defeat JKAM's case that ACPL (and hence JKAM as assignee) was entitled to recover the claimed debt of $528,000. At [15] his Honour said: "The argument was one which had not been pleaded, and had not been referred to by Mr Cohen in his written outline of his case or in his oral submissions at the commencement of the case. The new argument was to the effect that ACPL had, in 2012, implicitly assigned to JKAM from Damien its claims to the debt and that the debt had been subsumed into the agreements of December 2012."
The actual assignment of the debt did not occur until 27 August 2014. It was apparently perceived on behalf of Damien that he could take advantage of the terms of the Deed, assuming that ACPL rather than JKAM had performed the building work, if that debt had been assigned prior to the Deed being entered into on 10 December 2012, so that, in some unstated way, the debt would be subsumed into the terms of the Deed and would no longer be able to be recovered other than in accordance with the terms of the Deed.
In this respect, clause 2 of the Deed relevantly provided as follows: "Damien and JKAM agree that: … (h) the value of the construction works undertaken by JKAM at the Property is $480,000.00 plus GST if applicable ('Construction Works Amount'), (i) to secure payment of the Construction Works Amount Damien agrees to grant to JKAM a second mortgage over the Property. …"
It was submitted that although the Deed contained an acknowledgement that the value of the building work undertaken by JKAM was $480,000 plus GST, it was silent as to whether, and when, that amount became due and payable. Accordingly, it was submitted that regard could be had to the earlier email and, in particular, paragraph 16 of Damien's affidavit, to support the argument that the relevant amount only became due and payable in the event that the Contract for Sale was terminated. It is obvious that pre-contractual negotiations could not be used for this purpose (See Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337 at 352 (Mason J)). Relevantly, the Deed contained an "Entire understanding" provision (clause 5.11) which provided, amongst other things, that all previous negotiations and understandings concerning the subject matter of the Deed were merged in, and superseded by, that document. In any event, Damien's complaint was that the Deed did not contain the full terms of what had been agreed between the parties. Assuming that was so, then Damien's remedy was to sue for rectification of the Deed. It follows that the primary judge was clearly entitled to reject the relevant tender. Ground of Appeal 6 should be rejected.

Ground of Appeal 5

Ground of Appeal 5 is somewhat difficult to follow. JKAM's case, both as pleaded and as run at trial, was that the relevant contracting entity for the building work was ACPL. That was disputed by Damien who argued that the relevant contractor was JKAM. In these circumstances, there does not appear to be any substance in this ground of appeal.

Ground of Appeal 3

Ground of Appeal 3 related to a tax invoice from ACPL to Damien dated 7 March 2013, claiming $505,000 plus GST. It is apparent that the amount claimed was disputed, but there was ultimately agreement in relation to what it should be. The primary judge (at [18(e)]) relied on the invoice which had been provided by Damien's broker to the St George Bank in support of a refinancing application. His Honour inferred, based on Damien's evidence, that he must have sent that invoice or authorised Mr Elia to send it to Damien's broker, reflecting an understanding on his part that ACPL was the entity with which he had contracted. It was submitted that this was post-contractual conduct which was inadmissible. However, it is clear that his Honour used the evidence solely for the purpose of identifying the parties to the relevant building contract. This was entirely permissible as a consequence of which the ground of appeal has no substance (See Brambles Holdings Pty Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153 at [25]-[26] (Heydon JA).

Grounds of Appeal 1, 2 and 7

Grounds of Appeal 1, 2 and 7 can be dealt with together. Damien's submission was that no evidence had been led by JKAM to establish that the relevant builder was ACPL. The primary judge rejected the submission that he had not entered into an agreement with ACPL but rather with some other entity controlled by Mr Elia which Damien was unable to identify. His Honour dealt with the issue at [18] of his reasons which I set out (omitting transcript references) below: "Mr Damien admitted that he had agreed to pay $480,000 plus GST for the works. He admitted that the agreement made was made with a company allied to Elia. There was no dispute that ACPL was a company allied with Elia. Damien admitted that the work the subject of the agreement had been performed. What he did not admit, in fact denied, was that the agreement he had made was one with ACPL. Mr McDonald drew attention to material which in his submission established that the company with which Damien contracted was ACPL namely: (a) the fact that JKAM was not incorporated until 20 June 2012 and the conversation which Damien deposed to as an agreement in respect of the amount $480,000 plus GST was May 2012 (b) the fact that the only quote Damien received was from ACPL and all email communications from Elia was the email address of ACPL (c) the fact that the scope of work's appended to ACPL's letter of 22 December 2012 (sic) [2011] was the work which he required be performed and it was only the price in the quote to which he did not agree (d) the fact that Damien organised for Champion, the previous builder, to provide plans and drawings for the site to ACPL (e) the fact that an invoice from ACPL dated 7 March 2013 was provided by Damien's broker to St George, and the inference based on Damien's evidence that Damien must have sent that invoice, or authorised Elia, to send it to Damien's broker, reflecting an understanding on his part that that is the entity which he had contracted, and that he sought as part of the loan from St George the amount of $550,000 to pay that bill (f) that Damien never received an invoice from JKAM (g) he agreed that had he seen an invoice from ACPL for $528,000 he would not have been surprised (h) the absence of any protest by Damien on receipt of the notice of assignment given to him by ACPL"
At [20], his Honour referred to paragraphs 2(h) and (i) of the Deed as possibly being seen to undermine JKAM's contention that the building contract was with ACPL and not it. However he rejected that contention in the following terms (omitting transcript references): "When strictly construed the sub clauses are not inconsistent with Damien's contract being with ACPL even though the work was said to have been carried out by JKAM, and it even could be said that the parties were agreeing between themselves that the work had been done by JKAM even if it had not, but if the sub clause was taken to be an admission by JKAM that the contract for the works was with it (and an admission by Damien that the work had been performed by it) then JKAM would be entitled to recover the $528,000 not as assignee but as debtor in its own right, there being no dispute that the $528,000 has not in fact been paid. Mr Cohen appeared to accept that this would be so, at least if the Contract for Sale has been terminated following Damien's notice to that effect."
Apart from the foregoing, the cross-examination of Damien contained, as his Honour found, a number of concessions the effect of which was to justify a finding that he had contracted with ACPL to carry out the building work. He was cross-examined with respect to the receipt of a quote by ACPL dated 22 December 2011 in the amount of $828,545. He agreed that he did not accept that quote as the price was too high but when asked whether he agreed for the building work to be carried out by a company associated with Mr Elia, he responded: "Sorry, you have to be more specific because there were two quotes, one for $800,000 which I declined, and one for $480,000 which I accepted."
In the following question he answered that he agreed for a company associated with Mr Elia to carry out the works "based on the $480,000 quote". He accepted that ACPL was a company associated with Mr Elia.
Pausing there, it is apparent that Damien accepted that he received two quotes - one for $800,000 (which he declined) and one for $480,000 (which he accepted). There would be no reason to believe that the second quote emanated from other than ACPL, particularly as he accepted that the Scope of Works attached to ACPL's quote of 22 December 2011 was the Scope of Works which he accepted. Nevertheless, when asked whether he received more than one quote, he stated that he only received the one from ACPL for $800,000 - an answer which was inconsistent with his earlier reference to receiving not only that quote but also one for $480,000.
Damien agreed that the Scope of Works attached to the ACPL quote of December 2011 was an accurate scope of works at the time and that the price was the only issue with which he disagreed. The following exchange then occurred: " … Q. Once the price was agreed the rest of the arrangements continued as [ACPL] had put to you -- A. The price of 480. Q. When you say the price, you say it was -- A. That's what I agreed on. Q. Let's just get to that point. What I'm putting to you is once that price was agreed, and you say it's 480? A. Yes. Q. Plus GST? A. Yes. Q. Once that figure was agreed upon then the other terms of the arrangement such as the scope of works, continued as they had been put to you by [ACPL]? A. Correct. Q. It is a fact that building works have been carried out on your property at Camden since around August 2012? A. Yes. … Q. Do you accept, sir, that the value of the building works that have been completed is 480,000 plus GST? A. Yes. …"
Damien was questioned with respect to his receipt of the Notice of Assignment of ACPL's debt. It was put to him that at no time after its receipt did he communicate in writing that he objected to the document upon the basis that ACPL was not the contracting party in respect of the building work. His response was that he objected to it in principle and passed it on to his lawyer. He accepted that he did not communicate either to JKAM or ACPL that the document was in error. He was unaware of whether his solicitors had done so or not, but when a call was made regarding any communication from his solicitors to ACPL or JKAM in response to the Notice of Assignment, counsel for Damien responded that no document was produced. Furthermore, there was no re-examination of Damien to suggest that at all material times he believed that he was contracting for the building work with JKAM. Importantly, at paragraph 18 of his affidavit sworn 18 March 2014, after noting that the building work commenced around August 2012, he stated that there was no document between he and Mr Elia at that time as he "was not too concerned about contracts at this stage as he was spending money on the construction works."
In light of the foregoing evidence, in my view it was more than open to the primary judge to find on the balance of probabilities that Damien had contracted with ACPL with respect to the building work. Accordingly, not only was there in fact evidence to support his Honour's finding in that regard, but also there was no error of the nature of that alleged in Grounds of Appeal 1 and 2. Each of those grounds as well as Ground of Appeal 7 should therefore be rejected.
I should note for the sake of completeness, that it was submitted on behalf of Damien that there could not have been any concluded contract between ACPL and Damien as there was no evidence as to the terms of any such contract. The only term that was relevant was the price, and that was agreed. If there were any other terms of the agreement upon which Damien relied, then the onus lay upon him to establish them. The only term asserted was that the $480,000 plus GST was not due and payable whilst the Contract for Sale was on foot. But as I have observed, that condition precedent, if such it be, had been satisfied as the contract had been terminated.
Finally, it should be noted that JKAM did not plead or purport to rely upon the terms of the Deed and, in particular, clause 2(h) as creating a debt which was due and payable. It accepted that in the event that it succeeded on the appeal, it could not make any claim for the further payment of $480,000 plus GST referred to in that sub-paragraph, so that there could be no "double dipping", a matter of concern to Damien. Counsel made it very clear, as recorded on the transcript, that JKAM was making only one claim to the $480,000 plus GST, and that that claim was the one determined by the primary judge.

Conclusion

In my view, each of the grounds of appeal upon which Damien relies to challenge the finding of the primary judge that Damien was liable to JKAM as assignee of the debt of $528,000 from ACPL, should be rejected. I would therefore propose that the appeal be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2015

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