New South Wales
Court of Appeal
CITATION: Batterham v Makeig [2010] NSWCA 86 HEARING DATE(S): 1 and 2 March 2010
JUDGMENT DATE:
22 April 2010JUDGMENT OF: McColl JA at [1]; Young JA at [2]; Sackville AJA at [126] DECISION: (1) Appeal allowed.
(2) Orders of Ward J set aside.
(3) In lieu order that the proceedings be dismissed with costs.
(4) Order that the cross-claim be dismissed.
(5) Order that the respondent repay to the first appellant within 14 days any monies obtained by him in reliance of the judgment below.
(6) Order that the respondent pay the appellants' costs of the trial and of the appeal.
(7) With respect to the costs of the appeal the respondent is to have a certificate under the Suitors Fund Act 1951.
(8) The parties may apply for any further orders for restitution or generally, but only if a notice of motion is filed within 14 days.CATCHWORDS: CONTRACTS- construction and interpretation of contracts- whether on its proper construction, a clause requiring respondent to pay consultants' costs and costs ancillary to consultants' services obliged the respondent to pay council fees that parties knew were being utilised to pay consultants' costs incurred by the council- primary judge focused on the character of fees as "lodgement fees"- in the circumstances, and according to the language of the clause and the layman's agreement as a whole construed according to its commercial purpose, the trial judge erred in finding that the respondent was not obliged to pay fees. CONTRACTS- discharge, breach and defences to action for breach- whether respondent breached and repudiated agreement and whether appellant justified in treating breach as repudiation- whether adherence to an incorrect interpretation of a contract when bona fide dispute as to true construction- arguable construction not the reason for non-payment- where respondent did not pay fees in a timely manner as part of "poker game" to obtain written agreement as to refunding and remuneration from council- viewed objectively, the "poker game" conveyed a blanket refusal of an essential term and constituted a repudiation justifying appellant's termination. DAMAGES- discount rate for vicissitudes and present value- primary judge discounted damages by 12.5% for the possibility that put and call options exercisable until November 2012 might not be exercised- further discount required to cover present value of money and general vicissitudes. TRADE PRACTICES- misleading or deceptive conduct- whether project agreement should be set aside because respondent's representation that he was an "experienced project consultant" constituted misleading or deceptive conduct- question of fact whether respondent was "experienced"- whether "professional" connoted competence- claim fails because no reliance on the representation and thus no loss "by" respondent's conduct under Fair Trading Act 1987, ss 68, 72. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 57, 94
Fair Trading Act 1987, ss 68, 72CATEGORY: Principal judgment CASES CITED: Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385; 52 ALJR 407 (PC)
Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR…
Continue reading Batterham v Makeig
Sign in free to access the full text
Details
- AGLC
- Batterham v Makeig [2010] NSWCA 86
- Case
- [2010] NSWCA 86
- Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the New South Wales Court of Appeal from a decision of Ward J. The dispute arose from a contract between the appellants, Batterham and Makeig, and the respondent, Makeig. The appellants sought to recover certain fees and damages, while the respondent counterclaimed.
The primary legal issues before the Court of Appeal were whether the respondent was obliged under the contract to pay council fees that were being used to cover consultant costs, whether the respondent had breached and repudiated the agreement by failing to pay these fees in a timely manner, and whether the appellants were justified in treating such a breach as a repudiation. Additionally, the court considered the appropriate discount rate for damages and whether the respondent's representation of being an "experienced project consultant" constituted misleading or deceptive conduct.
The Court of Appeal found that the primary judge had erred in concluding that the respondent was not obliged to pay the council fees. The court reasoned that, when construed according to its commercial purpose and the language used, the contract required the respondent to pay these fees. Furthermore, the court determined that the respondent's failure to pay the fees in a timely manner, which was described as a "poker game" to achieve other contractual objectives, objectively conveyed a refusal to adhere to an essential term of the agreement, thereby constituting a repudiation that justified the appellants' termination of the contract. The court also found that the appellants' claim for misleading or deceptive conduct failed because there was no reliance on the respondent's representation, and therefore no loss suffered by the appellants as a result of that conduct.
The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. In lieu, the proceedings were dismissed with costs, and the cross-claim was also dismissed. The respondent was ordered to repay any monies obtained under the original judgment and to pay the appellants' costs of both the trial and the appeal, with a certificate granted under the Suitors Fund Act 1951 for the appeal costs. The parties were permitted to apply for further orders regarding restitution or generally within 14 days.
The primary legal issues before the Court of Appeal were whether the respondent was obliged under the contract to pay council fees that were being used to cover consultant costs, whether the respondent had breached and repudiated the agreement by failing to pay these fees in a timely manner, and whether the appellants were justified in treating such a breach as a repudiation. Additionally, the court considered the appropriate discount rate for damages and whether the respondent's representation of being an "experienced project consultant" constituted misleading or deceptive conduct.
The Court of Appeal found that the primary judge had erred in concluding that the respondent was not obliged to pay the council fees. The court reasoned that, when construed according to its commercial purpose and the language used, the contract required the respondent to pay these fees. Furthermore, the court determined that the respondent's failure to pay the fees in a timely manner, which was described as a "poker game" to achieve other contractual objectives, objectively conveyed a refusal to adhere to an essential term of the agreement, thereby constituting a repudiation that justified the appellants' termination of the contract. The court also found that the appellants' claim for misleading or deceptive conduct failed because there was no reliance on the respondent's representation, and therefore no loss suffered by the appellants as a result of that conduct.
The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. In lieu, the proceedings were dismissed with costs, and the cross-claim was also dismissed. The respondent was ordered to repay any monies obtained under the original judgment and to pay the appellants' costs of both the trial and the appeal, with a certificate granted under the Suitors Fund Act 1951 for the appeal costs. The parties were permitted to apply for further orders regarding restitution or generally within 14 days.
Orders
Orders of the court
(1) Appeal allowed.
(2) Orders of Ward J set aside.
(3) In lieu order that the proceedings be dismissed with costs.
(4) Order that the cross-claim be dismissed.
(5) Order that the respondent repay to the first appellant within 14 days any monies obtained by him in reliance of the judgment below.
(6) Order that the respondent pay the appellants' costs of the trial and of the appeal.
(7) With respect to the costs of the appeal the respondent is to have a certificate under the Suitors Fund Act 1951.
(8) The parties may apply for any further orders for restitution or generally, but only if a notice of motion is filed within 14 days.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.