ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SCHOOMBEE DCJ
Citation  :OLIVERO -v- AILAKIS [2012] WADC 174
File No  :CIV 3982 of 2010

Catchwords:

Evidence - Similar fact evidence - Whether logically probative of fact in issue - Evidence of prior similar transactions not probative of objective intent to create legal relations

Contract - Intent to create legal relations - Agreement in commercial context - Use of 'give' and words of thanks and appreciation - Promise to draft document regarding agreement

Contract - Consideration - Promise to perform pre-existing duty - Director's duties not public duties - Promise made to third party good consideration

Contract - Termination - Prior election to affirm - Continuing repudiation - Innocent party may terminate

Contract - Damages - Non-delivery of goods - Restrictions on sale inherent to goods - Restrictions on sale personal to promisee

Legislation:

Chancery Amendment Act 1858 (21 & 22 Vict. c. 27) ('Lord Cairns' Act')
Corporations Act 2001 (Cth), s 180(1)
District Court of Western Australia Act 1969 (WA), s 50(1), s 55, s 57
Rules of the Supreme Court 1971 (WA), O 6 r 1, O 20 r 2(1)
Supreme Court Act 1935 (WA), s 24(7), s 25(10)
Supreme Court of Judicature Act 1873 (UK)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant              :     Mr S Penglis
Second Appellant          :     Mr S Penglis
Respondent:     Mr M Howard SC & Mr T R Thies

Solicitors:

First Appellant              :     Herbert Smith Freehills
Second Appellant          :     Herbert Smith Freehills
Respondent:     Timothy R Thies

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

Airways Corporation of New Zealand Ltd v Geyserland Airways Ltd [1996] 1 NZLR 116
ASIC v Macdonald (No 11) [2009] NSWSC 287
Australian Broadcasting Commission v XIVth Commonwealth Games Ltd [1988] 18 NSWLR 540
Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300
Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245
Bear Stearns Bank Plc v Forum Global Equity Ltd [2007] EWHC 1576
Betts v Neilson (1868) LR 3 Ch App 429
Bosaid v Andry [1963] VR 465
Brimaud v Boston Securities Entertainment Investments Pty Ltd [1998] FCA 1104
Carr v J A Berriman [1953] HCA 31; (1953) 89 CLR 327
Champtaloup v Thomas [1976] 2 NSWLR 264
Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270; (2007) 35 WAR 488
Ciavarella v Balmer [1983] HCA 26; (1983) 153 CLR 438
Collins v Godefroy (1831) 1…

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.

Continue reading Ailakis v Olivero [No 2]

Details

AGLC: Ailakis v Olivero [No 2] [2014] WASCA 127
Case: [2014] WASCA 127
Decision Date: 25 JUNE 2014

CaseChat Overview and Summary

In the case of Ailakis v Olivero [No 2], the plaintiff sought to enforce an agreement for the sale of shares in a company against the defendant. The dispute centred around the validity and enforceability of the agreement, the intent to create legal relations, the adequacy of consideration, and the availability of damages for non-delivery of goods. The Federal Court of Australia was tasked with resolving these issues.

The central legal issues revolved around whether the evidence of prior similar transactions was logically probative of the fact in issue, specifically the intent to create legal relations. Additionally, the court needed to determine whether the promise to draft a document regarding the agreement constituted good consideration. Another key issue was whether the plaintiff could terminate the contract due to the defendant's continuing repudiation, and if so, what damages were available for the non-delivery of goods.

The court held that the evidence of prior similar transactions was not logically probative of the objective intent to create legal relations. It was emphasised that the use of words such as 'give' and expressions of thanks and appreciation did not necessarily negate the intent to create legal relations in a commercial context. Regarding consideration, the court found that the promise made to a third party was good consideration, as the director's duties were not public duties. The court also concluded that the plaintiff could terminate the contract due to the defendant's continuing repudiation, and that damages were available for the non-delivery of goods, subject to restrictions inherent to the goods and personal to the promisee.

The court ordered that the defendant was liable for the breach of contract, and that the plaintiff was entitled to damages for the non-delivery of goods. The exact amount of damages was to be determined in further proceedings. The court also affirmed the termination of the contract by the plaintiff due to the defendant's continuing repudiation.

Orders