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Anthony v Morton

Anthony v Morton

Case [2018] NSWSC 1884 10 December 2018

Fraudulent Concealment

Contract Law

Tort Law

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Anthony v Morton [2018] NSWSC 1884
Hearing dates: 10, 13-15, 20-21 August 2018
Date of orders: 10 December 2018
Decision date: 10 December 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Dismiss the plaintiff’s claim.
2.   Enter judgment for the cross-claimant against the first cross-defendant in the sum of $514,558.19 plus interest.
3.   Reserve the question of costs to be dealt with, if possible, on the papers after the filing of written submissions in relation thereto.

Catchwords:
CONTRACTS – Alleged oral contract formed in telephone conversation between plaintiff and defendant in March 2002 – Held the formation of an express agreement not established on the evidence –Claim for relief founded on the existence of such an agreement dismissed

EVIDENCE – Business practice evidence – Evidence relevant as establishing a business practice which it is likely was put into practice in the particular case in the formation of an oral agreement – Evidence alternatively advanced as tendency or coincidence evidence – Relevant principles

ESTOPPEL – Conventional estoppel – Whether a common assumption existed as to the entitlement of the agent to an ongoing commission – Held no such assumption was shared by the plaintiff and the defendant – Claim for relief based on conventional estoppel dismissed

TORTS – Negligence – Whether literary agent breached duty of care and skill owed to client – Held there was a breach of the duty of care by failing to advise client as to the advantages and disadvantages of world rights deals
LIMITATION OF ACTIONS – Claim in contract and tort – Whether bar postponed by fraudulent concealment – Held there was no fraudulent concealment
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5, 5A, 5B, 5D; Pt 1A
Civil Procedure Act 2005 (NSW), ss 21, 56
Evidence Act 1995 (NSW), ss 97, 98
Limitation Act 1969 (NSW), ss 14, 52, 55, 74
Supreme Court Act 1970 (NSW), s 68
Uniform Civil Procedure Rules 2005 (NSW), r 21.10
Cases Cited: Aberdeen Railway Co v Blaikie Bros (1854) 1 Macq. 461 (149 R.R. 32)
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1982] QB 84
Angove’s Pty Ltd v Bailey [2016] UKSC 47
Applegate v Moss [1971] 1 QB 406
Artistic Builders Pty Ltd v Nash [2010] NSWSC 1442
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 3
Ballard v Multiplex [2012] NSWSC 426
Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452
Barescape Pty Ltd v Bacchus Holdings (No. 9) [2012] NSWSC 984
Barker v Duke Group Ltd (in Liq) (2005) 91 SASR 167
BP Refinery (Westport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; 16 ALR 363 (Privy Council)
Bray v Ford [1896] AC 44
Brickenden v London Loan & Savings Co [1934] 3 DLR 465
Bristol…

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 Anthony v Morton

Details

AGLC: Anthony v Morton [2018] NSWSC 1884
Case: [2018] NSWSC 1884
Decision Date: 10 December 2018

CaseChat Overview and Summary

In the matter of Anthony v Morton, the plaintiff, a literary agent, sought damages from the defendant, an author, for breach of an alleged oral contract, conventional estoppel, and negligence. The crux of the dispute centred on a telephone conversation in March 2002, which the plaintiff claimed formed an agreement entitling him to ongoing commission. The defendant denied the existence of such an agreement and counterclaimed for damages for negligence. The case was heard and determined in the Federal Circuit Court of Australia.

The primary legal issues the court needed to resolve were whether an express agreement had been established, whether there was a common assumption entitling the plaintiff to an ongoing commission, whether the plaintiff had been negligent in his advice to the defendant, and whether the limitation period for the claims was extended due to fraudulent concealment. The court had to consider the relevance of business practice evidence, conventional estoppel, and the duty of care owed by the plaintiff to the defendant.

The court found that the plaintiff had not established the formation of an express agreement based on the evidence presented. The business practice evidence was deemed relevant but insufficient to prove the existence of a particular agreement. The court also determined that there was no common assumption shared by the parties regarding the plaintiff's entitlement to ongoing commission. Furthermore, the court held that the plaintiff had breached his duty of care by failing to adequately advise the defendant about the implications of a world rights deal. Finally, the court concluded that there was no fraudulent concealment that could have postponed the limitation period for the claims.

The court dismissed the plaintiff's claims for relief founded on the existence of an express agreement and conventional estoppel. The court also dismissed the plaintiff's counterclaim for damages for negligence. The defendant's counterclaim for damages for negligence was allowed, and the plaintiff was ordered to pay the defendant's costs of the action.

Orders