ABSOLUTE ANALOGUE INC -v- SUNDANCE RESOURCES LTD [No 3] [2014] WASC 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 283
Case No:	CIV:1773/2007	Heard:	25 NOVEMBER 2013
Coram:	LE MIERE J	Delivered:	6/08/14
No of pages:	45	Judgment Part:	1 of 1
Result:	Plaintiff's claim is dismissed
Category:	B
PDF Version

Parties:	ABSOLUTE ANALOGUE INC DAVID PORTER SUNDANCE RESOURCES LTD
Catchwords:	Formation of contract Oral agreement Whether final agreement made Protracted or imprecise negotiations Intention to make a concluded agreement No concluded binding agreement made Authority to contract No actual authority No apparent or ostensible authority Relief Election to terminate agreement Entitlement to damages in substitution for specific performance Measure of damages for failure to deliver options
Legislation:	Supreme Court Act 1935 (WA), s 25(10)
Case References:	Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1998) 18 NSWLR 540 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Crouch v Joseph (Unreported, WASC, Library No 9004.1, 22 August 1991) Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599 Fazio v Fazio [2012] WASCA 72 Ferguson v Wilson (1866) LR 2 Ch App 77 Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 112 Industrial Rollformers Pty Ltd v Ingersoll-Rand Australia Ltd [2001] NSWCA 111 Johnson v Perez (1988) 166 CLR 351 Kriketos v Livschitz [2009] NSWCA 96 Lake Cumberline Pty Ltd v Effem Foods Pty Ltd t/as Uncle Bens of Australia (Unreported, Federal Court, 29 June 1995) Robinson v Harman (1848) 1 Exch 850; 154 ER 363 Ronnoc Finance Ltd v Spectrum Network Systems Ltd (1997) 45 NSWLR 624 Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ABSOLUTE ANALOGUE INC -v- SUNDANCE RESOURCES LTD [No 3] [2014] WASC 283 CORAM : LE MIERE J HEARD : 25 NOVEMBER 2013 DELIVERED : 6 AUGUST 2014 FILE NO/S : CIV 1773 of 2007 BETWEEN : ABSOLUTE ANALOGUE INC

First Plaintiff

DAVID PORTER

Second Plaintiff

AND

SUNDANCE RESOURCES LTD

Defendant

Catchwords:

Formation of contract - Oral agreement - Whether final agreement made - Protracted or imprecise negotiations - Intention to make a concluded agreement - No concluded binding agreement made

Authority to contract - No actual authority - No apparent or ostensible authority

Relief - Election to terminate agreement - Entitlement to damages in substitution for specific performance - Measure of damages for failure to deliver options

Legislation:

Supreme Court Act 1935 (WA), s 25(10)

Result:

Plaintiff's claim is dismissed

Category: B

Representation:

Counsel:

First Plaintiff : Mr C L Zelestis QC & Mr M J Feutrill

Second Plaintiff : Mr C L Zelestis QC & Mr M J Feutrill

Defendant : Mr G R Donaldson SC & Ms S E Russell

Solicitors:

First Plaintiff : Tottle Partners

Second Plaintiff : Tottle Partners

Defendant : Clyde & Co Australia

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1998) 18 NSWLR 540
Commonwealth v Amann…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 283
Decision Date: 6 AUGUST 2014

CaseChat Overview and Summary

Absolute Analogue Inc sought damages against Sundance Resources Ltd for the alleged breach of an oral agreement to grant Absolute Analogue an option to acquire shares in Sundance. The court was tasked with determining whether the parties had formed a binding contract and whether Absolute Analogue was entitled to any damages or other relief. The central legal issues were whether the parties had reached a final agreement and whether Absolute Analogue had the authority to contract on behalf of Sundance. The court examined the evidence and found that the negotiations were protracted and imprecise, and there was no clear demonstration of the parties' intention to be bound. The court concluded that no binding contract had been formed due to the absence of an intention to create legal relations. Furthermore, the court found that Absolute Analogue had no actual, apparent, or ostensible authority to contract on behalf of Sundance. Absolute Analogue had elected to terminate the agreement, and the court found that it was entitled to damages in substitution for specific performance. However, the court determined that Absolute Analogue was not entitled to any damages as it had not suffered any loss. Therefore, the court dismissed Absolute Analogue's claim.

Orders

Orders of the court

Plaintiff's claim is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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