Biscayne Partners Pty Ltd v Valance Corp Pty Ltd - [2003] NSWSC 874

No judgment structure available for this case.

CITATION: Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors [2003] NSWSC 874

HEARING DATE(S): 15/09/03, 16/09/03, 17/09/03, 18/09/03, 19/09/03, 22/09/03, 23/09/03, 24/09/03

JUDGMENT DATE:
3 October 2003

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF: Einstein J

DECISION: Purported termination of Management Agreement by Valance parties held invalid. Plaintiff's causes of action in tort for wrongful inducement of breach of contract and for conspiracy to injure by unlawful means not made out. Leave to further address on disparate issues including quantum of damages.

CATCHWORDS: Contracts - Contract of agency for personal services - Artist and artist's company ["the Company"] enter into contract appointing Managing Agent ["the agent"] as sole and exclusive manager of artist in the entertainment industry - Date from which contract bound the parties - Principles of construction - Principles governing implication of terms - Termination clause providing that no breach of the contract is a material breach giving the other party the right to terminate unless written notice is given followed by failure to cure breach within 30 days of notice - Proper construction of termination clause - Purported termination by artist and company of contract without giving the 30 day notice to agent - Subsequent notice given eight months later without prejudice to validity of earlier termination and purporting to give the 30 day notice - Repudiation of contract - Necessity to draw a distinction between on the one hand, a circumstance involving a repudiation by one of the parties in terms of the evincing of an intention no longer to be bound by the contract and on the other hand, a circumstance where the claimed repudiation falls short of an express repudiation - Tort - Interference with contractual relations - Inducement of breach of contract - Principles - Person committing the tort must be a third party standing outside the contractual relation being interfered with - Company having only one appointed director - Artist found to be a de facto director - Whether artist as de fact director liable for the tort of inducing breach of contract where artist and sole appointed director determine that company should wrongly terminate the contract - Conspiracy - Conspiracy to injure by unlawful means - Principles - Intent to injure is a reference to the real purpose which the conspirators are trying to achieve - Equity - Remedies - Action for taking of an account - Plaintiff suing on cause of action for breach of contract - Where a breach of contract is established, it must be shown that there is also a breach of an equitable obligation (such as breach of a fiduciary duty, or breach of an obligation concerning the use of confidential information) before an account of profits will flow - Damages the only remedy which the common law provides for breach of contract - Damages - Damages for loss of chance

LEGISLATION CITED: Conveyancing Act 1919
Corporations Act 2001 (Cth)
Evidence Act 1995
Fair Trading Act 1987
Supreme Court Act 1970
Trade Practice Act 1974

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PARTIES :
Biscayne Partners Pty Ltd (Plaintiff)
Valance Corp Pty Ltd (First Defendant)
Holly Rachel Vukadinovic (also known as Holly Valance) (Second Defendant)
Rachel Jane Stevens (Third Defendant)

FILE NUMBER(S): SC 50199/02

COUNSEL: Mr JJ Garnsey QC, Mr R Lancaster, Mr JP Donohoe (Plaintiff)
Mr R Cobden, Ms R Rana (Defendants)

SOLICITORS: Tress Cocks & Maddox (Plaintiff)
Henry Davis York (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 3 October 2003

50199/02 Biscayne Partners Pty Limited v Valance Corp Pty Limited & Ors

JUDGMENT

The Proceedings

1 These are proceedings brought by the plaintiff, Biscayne Partners Pty Ltd ["Biscayne"] seeking relief in respect of a Management Agreement ["the Agreement"] made in early 2000. Biscayne is a company owned and controlled by Mr Scott Michaelson. Biscayne through Mr Michaelson was, until expiry of the term of the Agreement, the manager of Holly Rachel Vukadinovic, known as “Holly Valance” [“Ms Valance"]. Mr Michaelson ‘discovered’ Ms Valance. She was born on 11 May 1983 and was aged 15 at the time when she was first contacted by Mr Michaelson. He launched her career through the well-known and long-running TV drama series Neighbours and subsequently as a recording artist. It is common ground that the series has had a tremendous international exposure for those actors who have participated in it.

2 Mr Michaelson had also first appeared in the same TV series. Following some years on the Neighbours cast he was signed by Mr Robert Stigwood, a United Kingdom manager and entrepreneur, and moved to London and worked there for a number of years. He then began his management career, managing the actor Kimberly Davies. He formed his own management company in the United Kingdom in 1995, also pursuing an acting career. In about 1999 he turned his sole focus to his management and business interests.

The Management Agreement

3 The Agreement was in writing and entered into between Biscayne [described in the Agreement as "the Manager"], the first defendant, Valance Corp Pty Ltd ["Valance Corp"] [described in the Agreement as "the Company"] and the second Defendant, Ms Valance [described in the Agreement as "the Artist"]. [Valance Corp and Ms Valance are together referred to as “the Valance parties”]

4 The agreement provided for the appointment of Biscayne as the sole and exclusive manager of Ms Valance in the entertainment industry throughout the world for a period of three years.

5 Albeit being signed, the Agreement is not dated and there is an issue as to the precise date from which the Agreement took effect. The plaintiff’s claim is that the Agreement took effect from 18 May 2000. The defendants’ claim is that the Agreement took effect from 29 March 2000.

6 The agreement provided inter alia:

4. Manager’s Obligations

(a) represent the Company and the Artist in negotiations regarding the terms of all contracts for personal services arising in relation to the Artist’s career in the Entertainment Industry;
(b) supervise the Artist’s professional employment and consult with employers and prospective employers regarding the Artist’s professional career, employment and publicity;

(c) promote and publicise the Artist in all relevant media;

(d) engage, discharge and direct all booking agencies, promoters or employment agencies;

(e) negotiate and liaise with film and television producers, record companies, publishers, distributors, sponsors, merchandisers or other similar entities, as the case may be;

(f) seek and negotiate sponsorship and endorsement agreements;

(g) keep the Company informed of all matters which arise for consideration in relation to the Artist’s career, and to be reasonably available to consult with the Company on such matters;

(h) regularly consult with the Company and formulate plans and directions for development of the Artist’s career; and

12. Warranty and Indemnity

(a) will make herself available at all times to undertake the Artist’s Activities, unless otherwise agreed with the Manager;

(b) will observe and perform all the terms of any agreements entered into relating to the Artist’s Activities to the best of her ability;

(c) will not enter into any agreements relating to the Artist’s Activities without the Manager’s prior approval;

(d) will, subject to Clause 2.5, refer all offers to undertake Artist’s Activities to the Manager as soon as is practicable upon receiving any such offers;

(e) has full power and authority to enter into this Agreement and has granted no rights inconsistent with this agreement.

Valance Corp

7 Valance Corp, which was incorporated on 10 August 1999, was regarded as Ms Valance's management company. There was however no written agreement to this effect. Ms Stevens is the sole registered director. Ms Valance is the legal and beneficial owner of all of the issued capital of Valance Corp. The defendants admit on the pleadings that the business and affairs of Valance Corp were at all material times controlled and directed by Ms Valance's mother, the third Defendant, Ms Rachel Stevens. Biscayne had pleaded in the alternative:

· that the business and affairs of Valance Corp were controlled and directed by Ms Stevens up to the time when Ms Valance turned 18 years of age, from which date it is alleged that Ms Valence was a de facto officer within the meaning of section 9 of the Corporations Act 2001 (Commonwealth); and

· that the business and affairs were thereafter controlled by both Ms Stevens as well as Ms Valance.

[a late decision not to press the de facto director claim was announced during final address]

8 It seems clear [cf Transcript 307-308] that at least on and after 11 May 2001 Ms Valance dictated her own activities and those of Valance Corp, albeit consulting with Ms Stevens who often dealt with the lawyers, was copied with formal draft agreements and gave assistance of a backroom nature.

The termination for breach provision

9 The provision governing termination for breach is as follows:

“14. TERMINATION

(a) the party allegedly in breach is given written notice specifying the nature of the breach (this notice must be clearly headed “Breach of Agreement – Notice to Cure”); and

The purported termination

10 By facsimile letter dated 30 January 2002 addressed to Biscayne from London Solicitors, Lewis Davis Shapiro & Lewit, acting on behalf of Valance Corp and Ms Valance ["the first termination letter"]:

· Ms Valance purported to elect to treat the Agreement as void on a number of bases including the fact that the Agreement was signed by Ms Valance in March 2000 when she was 16 years old and that its content was not to her benefit;

· Valance Corp and Ms Valance purported to terminate the Agreement with immediate effect.

11 A letter of 27 September 2002 ["the second termination letter"] from Allens Arthur Robinson solicitors to Biscayne written on behalf of Valance Corp and Ms Valance, purported, if the Agreement remained on foot as at the date of the letter, to give notice to terminate the Agreement pursuant to clause 14.1 at the expiry of 30 days after receipt of the letter in the event that:

"during the period March 2000 to date Biscayne has failed to perform at all times its obligations pursuant to clause 4.1 of the Agreement.”"

12 It is convenient to note that the term "second termination letter" which I have used as an internal dictionary to describe the letter of 27 September 2002 is not altogether accurate because the letter in terms [but without prejudice to the claim that the Agreement had already been validly terminated], gave notice of intention to terminate pursuant to clause 14.1 at the expiration of 30 days in the event of a failure to rectify. In fact following the expiration of 30 days from 27 September 2002 no notice of termination was given. During the hearing counsel tended to refer to the 30 January and 27 September letters as "letters of termination" and this judgment simply adopts the same terminology although, of course, there is a question as to whether one may regard the second letter as being one purporting to terminate the Agreement. The Valance parties put forward the proposition that clause 14.1 simply operated to suspend for a 30 day period, what would otherwise be regarded as a material breach. The proposition was that if the breach was rectified within the 30 day period following the giving of a clause 14.1 notice, then as between the parties, clause 14.1 simply provided a deeming provision so that in that circumstance there never was a material breach. The proposition was that for that reason, following the giving of a clause 14.1 notice not rectified within 30 days, there was no necessity to give a further notice terminating the Agreement. Hence at least one approach taken by the Valance parties was that there was a termination notice given on 30 January or alternatively on 27 September 2002 [transcript 62]. The question of the proper construction of clause 14.1 is dealt with below.

13 The second termination letter was said to have been given without prejudice to the entitlement of Valance Corp and Ms Valance to act in accordance with the position that the 30 January 2002 notice of termination was validly given [that is, that on 30 January 2002 Ms Valance repudiated the Agreement with the effect that the Agreement was voided ab initio, or in the alternative, that Valance Corp and Ms Valance then terminated the Agreement with immediate effect].

The causes of action

14 No case was pleaded or pursued grounded upon the proposition that Ms Valance was entitled to avoid the Agreement ab initio on any of the bases alleged in the termination letters raising questions as to:

· her age at the time when the Agreement was signed;

· its content not being for her benefit;

· the terms not being properly or fully explained to her;

· her failing to have understood the terms;

· her vesting of trust and confidence in Mr Michaelson such that he was in a position of significant actual and/or presumed influence over her;

· her having allegedly been deprived by Mr Michaelson of her freedom to appoint legal and financial advisers of her own choice or being pressurised into appointing a particular solicitor to represent her in connection with the Agreement; or

· the Agreement not being to her benefit.

15 The several causes of action appear to reduce to:

· breach of contract as against the Valance Corp and Ms Valance (Summons paras 32, 33, 34, 35, 36 and 37);

· wrongful repudiation of the Agreement on 30 January 2002 or on 27 September 2002 as against Valance Corp and Ms Valance (Summons paras 23, 26);

· against Ms Stevens and Ms Valance for inducing Valance Corp to breach the contract by wrongfully purporting to terminate it (Summons para 24, 27);

· against Ms Stevens for inducing Ms Valance to breach the contract by wrongfully purporting to terminate it (Summons para 25, 28);

· conspiracy pleaded as follows:

· claims pursuant to clause 18.4 of the Agreement including a claim that Ms Valance has been substituted as contracting party to the Agreement in place of Valance Corp.

16 A central set of allegations underpinning several of these causes of action is put as follows:

In or about between August 2001 and December 2001 or in or about between August 2001 and January 2002 Stevens and Valance agreed, determined or arranged with and between each other and together with certain other persons that:

(a) the plaintiff should not continue as manager under the Management Agreement;

(b) Valance and Valance Corp should no longer perform their respective obligations under the Management Agreement; and

Particulars

(1) The agreement, determination or arrangement was partly oral and partly implied.

(a) On or about 26 July 2001 at the Bambini Trust Café, Elizabeth Street, Sydney, at about 10.00am, Mr Andrew Klippel and Mr Todd Wagstaff met Mr Scott Michaelson of the plaintiff and in the course of a conversation invited Mr Michaelson and the plaintiff to agree not to act as the exclusive worldwide manager of Valance and Valance Corp and to agree to the appointment of an agent in the United Kingdom, inter alia to facilitate the recording deal with London Records (90) Ltd. Mr Michaelson refused.

(b) Thereafter Mr Klippel and Mr Wagstaff and Engine Room Records failed and refused to provide Mr Michaelson and the plaintiff with details of Valance's dealings with London Records and trip to and commitments in London in January 2002 for recording and related purposes although they were requested to do so.

(c) After Valance complained to Mr Michaelson on 4 January 2002 at the late notice of the departure date for her trip in January 2002, Mr Michaelson complained to Mr Wagstaff who said to Michaelson that he (Mr Michaelson) would not be around much longer as Valance's manager.

(d) Between about 14 January and 30 January 2002 Mr Michaelson telephoned Valance on several occasions when she was in London to enquire about progress in her trip and Valance either declined to talk with him in any detail or did not return his telephone calls.

(e) Stevens, Valance and Valance Corp with certain other persons instructed, arranged and procured Lewis Davis Shapiro & Lewit, solicitors in London, to send to the plaintiff without notice a letter dated 30 January 2002 purporting, inter alia, to terminate the Management Agreement.

(f) At all material times the business and affairs of Valance Corp were controlled and directed by Stevens, or alternatively by Stevens and Valance.

[Summons paragraph 22]

The relief sought

17 Biscayne seeks:

· a declaration that the Agreement is a valid and operative contract binding upon Valance Corp and Valance on and from May 2000;

· a declaration that Valance Corp is in breach of clauses 2, 7, 10, 12 and/or 18 and the implied terms of the Agreement;

· declaration that Valance is in breach of clause 18 and the implied terms of the Agreement and, by its terms, thereby in breach of clauses 2, 7, 10 and 12;

· damages for breach of contract;

· damages for inducing and procuring breach of contract;

· damages for conspiracy;

· exemplary damages;

· further or in the alternative, an account of the commission due to the plaintiff under the Agreement; and

· further or in the alternative, injunctions requiring Valance Corp and Valance to comply with or restraining Valance Corp and Valance from continuing to refuse and fail to comply with their obligations under clauses 2, 7, 10, 12 and 18 and the implied terms of the Agreement.

18 A number of other issues fall for determination including questions of the proper construction of the Agreement.

The defendants’ case

19 In overview submissions the defendants asserted that the causes of action were defended as follows:

· the Management Agreement was validly terminated by reason of the letter from Lewis Davis Shapiro & Lewit dated 30 January 2002;

· that termination was valid by reason of Biscayne’s repeated and continuing breaches of the Management Agreement, in particular, of the core obligations of the Manager under clause 4.1;

· if clause 14.1 applied to the notice of 30 January 2002, clause 14.1 was sufficiently complied with, and the breach was not rectified within 30 days, resulting in termination;

· alternatively, if clause 14.1 applied and was not complied with, notice that did comply with clause 14.1 and resulted in termination was given by the letter of 27 September 2002 from Allens Arthur Robinson; and

· as a further alternative, the letters of 30 January 2002 and 27 September 2002 combined complied with clause 14.1.

20 The same overview submissions are inter alia to the following effect:

Breach of contract

In relation to the action for breach of contract against Holly Valance personally, to the extent that it relies on the provisions of clause 18.4(b) and alleges that Holly Valance was substituted at some time as a contracting party to the Management Agreement in place of Valance Corp (see Summons para 37), the defendants say that Biscayne never exercised in any way the option in clause 18.4(b); and so it did not bring about the substitution contemplated.

It is not contested that after 30 January 2002 (which of course includes after 27 September 2002) Valance Corp did not refer enquiries regarding Holly Valance’s services in the period ending March or May 2003 and did not ensure that Holly Valance did not enter into agreements described in clause 12.1(c) of the Management Agreement without Biscayne’s prior approval; and did not ensure that Holly Valance referred all offers of the kind described in clause 12.1(d) of the Management Agreement to Biscayne.

Moreover, if to do so was an obligation of Valance Corp after 30 January 2002, or if relevant, 27 September 2002, within the meaning of clause 18.4(a), Holly Valance did not ensure performance of such obligations.

Thus at the heart of the case on breach of contract is the validity of termination of the Management Agreement by the letter of 30 January 2002 or alternatively the letter of 27 September 2002.

Inducement of breach

Nor is it contested that, if the Management Agreement was not validly terminated by reason of the letter of 30 January 2002 or alternatively the letter of 27 September 2002, and if Valance Corp was thereby in breach, that its conduct was relevantly caused or procured by Rachel Stevens and Holly Valance.

It follows from the above that, once the issues that lie at the heart of the contract dispute are determined, Biscayne’s case for inducement of breach of contract will follow.

Termination

Biscayne was at least throughout 2001 and into the beginning of 2002 in material breach of its obligations under the Management Agreement.

Breaches

· represent Valance Corp and Holly Valance in negotiations regarding terms of the various contracts between Valance Corp or Holly Valance with any of London Records and Engine Room during the latter half of 2001 (Stevens paras 38, 44, 48, 55; Klippel paras 10, 18, 20, 22; Wagstaff paras 13, 15, 16, 17, 19, 21, 23, 24, 27 and 29; Hollingsworth paras 9, 11, 19 and 22; Fowler paras 19, 20, 21, 26, 27, 29 and 30; Michaelson affidavit 12 Sep 03 (reply) paras 21 and 38);

· supervise Holly Valance’s professional employment (Stevens paras 39, 40, 59 and 60; Valance paras 65-75, 79, 88, 89, 90, 102 and 109; Fowler paras 23 and 32; Hollingsworth paras 11, 16, 22, 24, 25 and 28; Wagstaff paras 19, 27 and 48; Klippel para 13);

· negotiate and liaise with record companies, publishers and distributors (see references in sub-paragraph (a) above);

· keep Valance Corp informed of all matters which arose for consideration in relation to Holly Valance’s career; and be reasonably available to consult with Valance Corp (Stevens paras 46, 52, 53, 54, 55, 59, 66 and 73; Michaelson reply paras 22, 25 and 26);

· consult regularly with Valance Corp to formulate plans and direction for development of Holly Valance’s career (Stevens paras 52, 53, 55 and 56).

Dramatis Personae

21 The evidence makes reference to a significant number of players associated, in varying degrees, with the parties and the development of Ms Valance’s career.

22 The main players are set out below in a short dramatis personae, with the players being grouped into relevant categories.

Legal and Financial players

Players associated with Neighbours and Ms Valance’s acting career

Representatives from Engine Room Music and London Records

Ms Valance’s Manager from May 2002

Other players in the entertainment and promotional industries

The evidence

23 It has to be said that a very substantial amount of evidence was given concerning the events covering the period from the first meeting between Mr Michaelson and Ms Valance and the point in time where their relationship and relevant communications ended. By reason of the holding as to the proper construction of the termination clause a great deal of this evidence which was put forward by the Valance parties as justifying the termination letters and in support of the proposition that the Agreement was either terminated on 30 January 2002 or on the 31st day following 27 September 2002, simply falls away as irrelevant. Without being exhaustive, essentially that evidence sought to make good the proposition that the conduct of Biscayne by its alter ego Mr Michaelson did not amount to:

· the discharge of the suggested obligation that Biscayne fulfil the usual functions of a manager for an artist [cf the use of those words in clause 2.2 of the Agreement, there used to identify that which Valance Corp agreed that it would not do (ie it could not “engage any other manager, agent or representative to fulfil the usual functions of a manager for the Artist”)];

· representing Valance Corp and Ms Valance in negotiations regarding the terms of all contracts for personal services arising in relation to her career in the entertainment industry;

· negotiating and liasing with film and television producers, record companies, publishers, distributors, sponsors, merchandisers or other similar entities, as the case may be; and

· otherwise discharging the manager’s obligations stipulated for in clause 4.1.

24 Evidence was given by number of witnesses including Mr Michaelson and Ms Valance. Broadly it may be said that much of the evidence reduces to the following categories:

The validity of the Agreement

· Detailed evidence of the negotiation of the Agreement leading to the signing of the Agreement suggested as relevant to the date from which the Agreement commenced to bind the parties.

The work and activities undertaken by Mr Michaelson on behalf of Biscayne

· Extensive evidence given by Mr Michaelson as to the inception of his arrangements leading to entry into the Agreement and as to the particular work and activities which he undertook in what is said to have been an entirely proper discharge of the contractual obligations of Biscayne under the Agreement. The evidence as to work and activities is set out in extensive detail in two affidavits, the first of which contains 252 paragraphs and covers a number of years. Whilst there appear to be some matters which are in issue going to the accuracy of this evidence a great deal of it was not in issue.

Failure to perform

· A bracket of evidence covering a number of various matters said by the defendants to make good the proposition that prior to the first and/or the second termination letters, Biscayne had been shown to have failed to fulfil even the most basic of management responsibilities.

Disparate issues

· Evidence going to sundry disparate issues usually by way of adjectival background but including material going to quantum of damages.

Chronology

25 Pursuant to the pre-hearing directions, a detailed chronology was produced by the plaintiff covering a deal of the vast volume of evidence which had been given on affidavit or statement going to the work and activities of Mr Michaelson who for relevant purposes may generally be regarded as the alter ego of Biscayne. [For obvious reasons the Judgment often uses references to Mr Michaelson and to Biscayne interchangeably.] The chronology identified the date of the relevant event, the plaintiff’s version of that event, the source from which that version was taken, the defendants’ version of the relevant event and the source from which that version was taken. The defendants then checked the chronology indicating additional matters and matters of agreement by ticks and additional references. The plaintiff’s version of events was accepted only as amounting to a proper reflection of the plaintiff’s evidence and no more.

26 It seems to me that efficiency dictates utilising the chronology in this form where so many of the relevant events were not in issue and where, by reference to the chronology and to matters which may have been in issue, the Court is able in the Judgment proper, to make findings as to which version of events is accepted as reliable. That chronology in reformatted form is set out as Appendix “A” to the Judgment and is noted up in relation to many of the rulings on evidence. I have in dealing with the evidence relied upon my own notes as to the rulings so that should there be any inadvertent errors made by my research assistant in noting up the chronology, they do not infect the approach taken by me to the evidence in the Judgment proper.

Reliability of witnesses

27 As so often happens there was very little in the way of direct conflict of evidence as between the versions of evidence given by factual witnesses. It is possible to shortly give some findings in this regard:

· Mr Michaelson is generally regarded as a reliable witness. His evidence across an extensive and detailed cross-examination was usually consistent with contemporaneous documents and generally fitted with evidence given by other relatively independent witnesses. Whilst he was clearly deeply affected emotionally through the hearing and at times over-exaggerated in his own favour, by and large his evidence was given firmly and as necessary he conceded where sometimes shown to be in error as to his recollection.

· Ms Valance's evidence is not always accepted as reliable. This is not to say that she was not doing her best on oath to recall what had happened. The experience of the court is that very often, particularly in litigation of high order or involving high emotions, litigants as they prepare for a hearing and as they think back over past events, have a tendency to over-exaggerate in their favour and come to believe a version of events which is then accordingly coloured. No doubt Ms Valance now strongly believes that Mr Michaelson fell down in the proper execution of relevant obligations to be found in the Agreement. The Court of course makes its findings on the basis of the whole of the evidence including contemporaneous documents and the evidence of all witnesses. Lack of material complaint to Mr Michaelson also affects her credit – a matter dealt with below.

· In one particular respect the evidence of Ms Valance is plainly rejected. This concerns the issue of the conversation with Ms Valentine. She gave evidence of a conversation with Ms Valance in around late January or early February 2002 when they were both in the Green Room at the Neighbours studio in Melbourne. Although Ms Valentine could not recall the exact words, the conversation had been along the lines that Ms Valance was feeling bad, she was “a bit stressed out” because she was leaving Mr Michaelson as her manager. She questioned Ms Valance in terms of her contract with Mr Michaelson and on her evidence the substance of what Ms Valance said was that the solicitors for the record company would get her out of that contract and they would be faxing the paperwork to Mr Michaelson in order to do so. In the course of the discussion Ms Valance had referred to terminating Mr Michaelson as her manager. Ms Valance had said that the record company did not really need Mr Michaelson any more and that they could take care of her now. Ms Valentine was closely tested in relation to this conversation in cross-examination. Her evidence was that she was overwhelmed because she knew how serious this was and she knew how much time Mr Michaelson had invested in Ms Valance and she knew "that this was going to be a very big deal". Under cross-examination her evidence was that she believed that the conversation was more towards January than in February. Under cross-examination it was put to her that Ms Valance had not mentioned anything to do with her record company and Mr Michaelson or the contract but her answer was quite firm to the effect that this was certainly mentioned to her. I formed a very clear view that Ms Valentine was telling the truth. Notwithstanding the clear denial by Ms Valance of this conversation having taken place the Court accepts Ms Valentine as having given reliable evidence. No motive has been shown for any reason why the evidence was not reliable. The evidence of Ms Valance denying the conversation is rejected.

· Ms Stevens’ evidence is not always accepted as reliable. Again this is not to say that she was not doing her best on oath to recall what had happened. Precisely the same comment in relation to high emotions as has been made in relation to the evidence of Ms Valance, can be made in relation to the evidence of Ms Stevens. Curiously her evidence conflicted in a number of areas to that given by Mr Kirby who could not recall detail of conversations or discussions with Ms Stevens.

· Mr Klippel was a particularly impressive witness and his evidence is almost always, but with one or two particular exceptions, entirely accepted as reliable. His evidence was given carefully and conscientiously. His evidence was patently not given with an eye to assisting either of the combatant litigants. Generally his evidence fitted with contemporaneous written material and was consistent with the evidence given by other witnesses.

· Likewise Mr Hollingworth was also a particularly impressive witness and his evidence is almost always entirely accepted as reliable. On rare occasions his evidence may not be accepted where inconsistent with other evidence. It was also given carefully and conscientiously and patently not given with an eye to assisting either of the sides of the bar table. Generally his evidence fitted with contemporaneous written material and was consistent with the evidence given by other witnesses.

· Mr Kirby was not an impressive witness. He seemed to have a very great deal of difficulty in recollecting very much at all in terms of the conversations which he had with Ms Stevens and in terms of other matters where one might have expected him to be in a position to assist. It is difficult to assess why this was the case. Ultimately his evidence is simply not accepted as reliable and where Ms Stevens gave evidence of conversations with him about material matters, her evidence is to be preferred as accurate even though Mr Kirby gave evidence that he could not recall these conversations.

· There was no serious challenge to any particular of the other witnesses’ credit. The evidence of other witnesses is simply weighed and dealt with against all of the evidence where obviously there will sometimes be some conflict and the Court’s findings take all the evidence into account.

28 The convenient course in dealing with the evidence is to relatively shortly provide an overview of the Court’s findings in that regard. Obviously it is unnecessary to set out findings in relation to every piece of the evidence before the Court. The central purpose of the exercise is to thumbnail sketch what the evidence amounted to in terms of the pleaded issues.

Short Overview

February 1999 to July 1999

29 At the commencement of this period Ms Valance was ‘discovered’ by Mr Michaelson. After some discussions relating to matters such as acting and acting classes and the like, Mr Michaelson arranged for Ms Valance to attend her first audition for Neighbours. In this period of time Ms Valance was offered a contract on Neighbours, and notwithstanding real resistance from Ms Valance, she eventually agreed to accept the role on Neighbours. The contract which was signed was a three-year contract dated in about mid 1999.

30 Ms Valance commenced on the Neighbours cast in July 1999.

31 Also during this period a meeting took place on 2 July 1999 at which it was agreed that Mr Michaelson will be Ms Valance’s manager and will receive a 15 percent commission on her income from Neighbours and a 20 percent commission on her income from all other activities in the entertainment industry. The oral arrangement was replaced in the early months of 2000 by the Agreement.

August 1999 to May 2000

32 From around December 1999 negotiations took place which lead to the execution of the Agreement in April/May 2000. Mr Michaelson retained Mr Oaten, to prepare a draft management agreement. In January 2000, Ms Stevens retained Mr Richards to represent the interests of the Valance parties. Mr Richards was recommended by Mr Oaten.

33 On 24 February 2000 a meeting was held between Mr Michaelson, Ms Valance, Ms Stevens, Mr Richards and Mr Oaten (who participated via telephone). During the meeting, there was discussion and agreement as to the terms of the contract. It was at this time that the provisions were explained to Ms Valance.

34 The Valance parties executed the Agreement on 26/27 March 2000 and Mr Michaelson received the executed document in early April 2000. The Agreement was then executed by Biscayne. Mr Michaelson returned the now fully executed copy of the Agreement to the Valance parties [by their solicitor, Mr Richards] on 18 May 2000.

35 During this period Mr Michaelson also arranged promotional activities for Ms Valance, including a photo shoot resulting in her appearance on the cover of FHM magazine in April 2000. Mr Michaelson also liased with other companies including Cutting Edge (in respect of a photography session), Red Earth Cosmetics (a proposal for Ms Valance to become the face of Red Earth) and International Management Group (endorsement opportunities) in an attempt to promote Ms Valance.

36 It was also during this period that Mr Michaelson began to pursue record companies, with the aim of securing a record deal for Ms Valance. These companies included Two Up Records, and Engine Room Music.

March 2000 to 7 December 2000

37 The major event during this period was the signing of the Engine Room Music contract.

38 During this period, Mr Michaelson was liasing, and negotiating with a number of record companies in an attempt to secure a music recording contract for Ms Valance. These companies included Standard Records, through Mr Carr; Engine Room Music, through Messrs Klippel and Wagstaff; and Mr Caplice (a director of Caplice Management [including Human Nature]) who had indicated that Warners may also have been interested in Ms Valance.

39 From July to November 2000 various meetings took place between Messrs Michaelson, Wagstaff and Oaten and Ms Stevens to discuss signing Ms Valance with Engine Room. Messrs Michaelson, Oaten, Klippel and Wagstaff attended a meeting on 3 November, where the main terms of the Engine Room contract were concluded. Mr Michaelson then discussed the meeting with Ms Valance. The Engine Room Music contract was signed on 7 December 2000.

40 Other events of note during this period include:

· towards the end of 2000, Ms Valance appeared in a film clip for the pop group Human Nature;

· in November 2000 Ms Valance carried out a Neighbours promotional tour to London. During this trip, Ms Valance spent time at London Records [which is part of the Warner group, one of the four or five major record companies in the world] and began recording the single Kiss Kiss; and

· in December 2000 Messrs Wagstaff and Klippel arranged for Ms Valance to fly to Los Angeles and to visit the studios of a production company to start making some recordings.

December 2000 to December 2001

41 Various key events took place in the year between December 2000 and December 2001. Of principal significance is the negotiation and signing of the London Records contract, and the gradual shutting out of Mr Michaelson.

42 Negotiations between Engine Room and London Records began in mid-2001. On 11 August 2001 Ms Valance performed a showcase at studios in Sydney for Mr Hollingsworth. This was organised by Engine Room, and Mr Michaelson did not attend. A dinner was also held at the Establishment restaurant attended by Ms Valance, Mr Michaelson, Mr Hollingsworth and Mr Klippel. The day’s events represented an important opportunity for Ms Valance and others to convince Mr Hollingsworth to consider signing Ms Valance to London Records.

43 Negotiations continued between London Records and Engine Room towards a worldwide recording distribution agreement. During the period of negotiation between September and October 2001, it was made clear to Mr Michaelson that his participation was not required as the deal was to be between the record companies.

44 As the negotiations reached the final stages, Ms Stevens engaged in daily and weekly discussions with Mr Oaten, Mr Kirby (who was appointed as Ms Valance’s and Valance Corp’s accountant in February 2001), Mr Klippel and Mr Wagstaff. Around this time, Mr Michaelson was attempting to contact Mr Hollingsworth to discuss matter, but was unsuccessful.

45 On 15 December 2001 the London Records deal was signed in Melbourne. The effect of the London Records contract was to put London Records in the place of Engine Room, with Engine Room still retaining a percentage pursuant to a replacement agreement.

46 A music publishing agreement was signed between Engine Room, Ms Valance and Valance Corp on 19 December 2001.

47 Ms Valance turned 18 years of age on 11 May 2001.

48 From at least mid 2001, it appears that Mr Michaelson was beginning to be shut out of the activities of Ms Valance and Engine Room. The events in relation to the negotiation of the London Records deal bear this out. Corresponding with this gradual shut out, is the shift towards the search for a UK manager for Ms Valance. At a meeting held at the Bambini Trust Café in Sydney on 26 July 2001, it was put to Mr Michaelson by Mr Wagstaff that in order to secure a deal for Ms Valance in the UK, it might be better to retain an experienced UK manager. Mr Michaelson gave evidence that he was being asked to step aside as Ms Valance’s managing agent in the United Kingdom. Mr Michaelson’s evidence on the issue is accepted as reliable. His removal as managing agent became a certainty in the minds of everyone with whom Mr Klippel dealt while the London Records Agreement was being negotiated. [Transcript 522]

49 During this period, despite not being fully informed of the affairs of Ms Valance and Engine Room, Mr Michaelson continued to liase with the producers of Neighbours on behalf of Ms Valance.

50 Mr Michaelson, from about mid-2001 had plans to relocate to the UK in order to manage Ms Valance’s career. He informed Ms Valance of this on numerous occasions and also discussed it with Ms Stevens in December 2001, just prior to Ms Stevens seeking legal advice about terminating the Agreement. Mr Klippel’s evidence [Transcript 531] which is accepted as reliable in this respect was that Mr Michaelson said at the Bambini Trust Café that:

· he would go to the UK when Ms Valance moved there; and

· if necessary he would use the advice of experienced UK Managers when the time came.

January 2002

51 In January 2002 Ms Valance travelled to London where she recorded Kiss Kiss and films the video clip for the track. Mr Michaelson did not accompany Ms Valance.

52 In December 2001 Ms Stevens sought legal advice from Louis Davis Shapiro & Lewit in relation to whether, in light of the Agreement, Ms Valance is able to obtain alternative professional management.

53 As a result of discussions with Louis Davis Shapiro & Lewit, the first termination letter was drafted on behalf of Ms Valance and Valance Corp. The letter, dated 30 January 2002, was faxed to Mr Michaelson, who received it on 1 February 2002.

54 In summary, the facsimile stated that Mr Michaelson has failed to perform his role as manager under the Agreement, and it is on this basis that the contract is terminated. It is significant to note that prior to receipt of the facsimile, Mr Michaelson had not received any significant complaint about his performance from the Valance parties.

30 January 2002 to 27 September 2002

55 The period between 30 January 2002 and 27 September 2002 marks the time between the first and second notices of termination of the Agreement. During this period certain significant events occurred.

56 Following receipt of the first termination facsimile, dated 30 January 2002, Mr Michaelson sought legal advice. As at that time he maintained that he and Biscayne were ready, willing and able to perform the obligations pursuant to the Agreement. Mr Michaelson gave evidence that Ms Valance changed her telephone number, making her uncontactable. [Transcript 291].

57 During this intervening period, the Valance parties sought out and retained for Ms Valance an alternative manager, Mr John Fowler, who was recommended to Ms Stevens by Mr Hollingsworth who said he had “a project” and would Mr Fowler be interested in looking at it, first met Ms Valance mid January 2002 at the Trafalgar hotel. Mr Fowler was engaged as Ms Valance’s manager by contract signed on 4 May 2002.

58 In mid-2002 Ms Valance left the cast of Neighbours.

27 September 2002 onwards

59 On 27 September 2002, Mr Michaelson received the second termination letter from Allens Arthur Robinson. This letter purported to terminate the Agreement, although was written without prejudice to the rights of Ms Valance and Valance Corp as presented in the 30 January facsimile. The letter purported to give Mr Michaelson 30 days notice of the Valance parties’ intention to terminate the Agreement if Biscayne Partners fails to rectify a material breach, such material breach being described as “during the period March 2000 to date Biscayne has failed to perform at all times its obligations pursuant to clause 4.1 of the Agreement”.

60 Following the second termination letter, the evidence appears to indicate that Ms Valance and/or Valance Corp entered into a number of contracts involving Ms Valance taking part in promotional and modelling work. On the evidence before the Court, these contracts include a contract with 1800/0800 Reverse [Ex PX Tabs 169, 176, 181; Transcript 69]. She also recorded vocals for her second album.

Questions of principle

61 Before returning to the more detailed factual findings, it is convenient to next address questions of principle arising on certain disparate matters where appropriate particular issues may be shortly determined by application of these principles.

The date from which the Agreement bound the parties

62 It is clear that those who ultimately executed the Agreement manifested an intention to contract. The only question which arises is seen to have been as to their intention in terms of the date on and after which the Agreement was to be binding upon parties. The answer to that question turns upon the objective intent as was made plain in the following passage from the speech of Lord Wilberforce:

what is to be taken as the intention which reasonable people would have had if placed in the situation of the parties.

Reardon Smith Line Ltd v Hansen-Tangen

63 Where an issue arises as to whether or not an agreement came into existence at all, a fundamental question falling for consideration is whether the conduct of the parties viewed in the light of surrounding circumstances, shows or is indicative of such an agreement having come into existence. Precisely the same approach is to be taken where the question falling for consideration is what is the point in time which the conduct of the parties, viewed in the light of the surrounding circumstances, shows the parties to have objectively intended as the date from which the contract was to commence to bind them.

64 The authorities and contract texts are replete with cases involving different facts and circumstances generally dealing with offer and acceptance situations. Hence one may for example find support for the following propositions:

· where an offer has been made, a contract binding the parties will result when, and only when, the offeree has clearly accepted the offer;

· the general rule is that an acceptance must correspond with the offer;

· normally acceptance is not effective until it has been communicated to the offeror;

· a contract is formed at the time when acceptance is effective, usually the time of receipt: Halsbury's Laws of Australia, Butterworths vol 6 [110-445];

· acceptance must take place within the period of duration of the power of acceptance created by the offeror in making the offer. A purported acceptance occurring outside of this period can at best be a counter-offer: Carter and Harland Contract Law in Australia, 4th ed, Butterworths, Sydney 2002 at [242]; and

· the offeror may prescribe the manner in which acceptance is to be made, and if the offeror has insisted upon this as the prescribed method of acceptance, a purported acceptance in any other manner is not an effective acceptance. 'The offeror creates the power of acceptance; and he has full control over the character and extent of the power that he creates.': Carter and Harland Contract Law in Australia supra at [228] citing Corbin on Contract, vol 1, 1963, at 88.

not

exclusive

only

65 White Trucks Pty Ltd v O'Reily (1948) 66 WN (NSW) 101 (cited in Halsbury's Laws of Australia [110-405] footnote 3) is an example of a holding that the mode of acceptance contemplated was not exclusive so that the offeree was bound by a letter of acceptance even though it had not signed a written memorandum as contemplated.

66 George Hudson Holdings Ltd v Rudder (1973) 128 CLR 387 [cited in the same footnote to Halsbury’s Laws of Australia] involved an offer to sell shares which did not stipulate for acceptance by post, being held to have been validly accepted by the personal delivery of an acceptance.

67 First Energy (UK) Ltd v Hungarian International Bank Limited [1993] 2 Lloyd's Report 194 at 201 per Steyn LJ with whom Evans and Nourse LJJ agreed [cited in the same footnote to Halsbury’s Laws of Australia], is an example of a case where although the relevant hire purchase documents had specified a mode of acceptance, the Court of Appeal held that this was overridden by a letter to which the documents were attached.

The particular facts before the Court

68 The salient feature presented by the clear evidence concerns the simple fact that the parties were content at the time each of them executed the document to execute a document which included the following provision:

69 Clearly clause 3.1 provided that the term of the Agreement would commence on the date of the Agreement. Equally clearly the first line, following the heading "Management Agreement," was left incomplete.

70 To my mind the whole of the matrix of circumstance covering the period anterior to the signing by the parties of the Agreement and the sundry communications between the parties and their solicitors, permits the Court to infer that the objective intent of the parties was that clause 17.4 would operate in accordance with its terms.

71 The Valance parties contended that Mr Michaelson, following his receipt of the Agreement executed by the Valance parties, could theoretically have simply held onto the Agreement without himself signing and returning it to Ms Valance and could thereby have dictated the occasion when it would be contractually binding upon the parties. The short answers to this proposition are:

· the Court is concerned with ascertaining the objective intent of the parties discerned from the relevant facts, matters and circumstances. In this case that objective intent is most clearly manifested in the wording of the clause within the Agreement which they signed having had the benefit of legal advice in relation to the document; and

· whilst there is no evidence of their having been made aware of this matter, as a matter of principle different causes of action, usually [but not necessarily solely] estoppel based, spring into operation to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that others detriment. In appropriate circumstances such an estoppel could have prevented Biscayne from denying that a contract had become binding upon it notwithstanding that it may not have executed the Agreement. The Trade Practice Act 1974 and the Fair Trading Act1987 have provisions which can also be mobilised in relation to this general area of wrongdoing.

Construction principles

72 There is no particular issue in relation to the principles to be applied to the construction of the Agreement. To my mind the following matters are unexceptional:

· the court is dealing with a commercial document albeit a contract of agency for personal services. In endeavouring to discern the parties intent and in construing the meaning of the words used, the Court will strive to give the document a commercial, reasonable and rational operation: Australian Broadcasting Commission v Australian Performing Right Association (1972) 129 CLR 99 at 109; Hide & Skin Trading v Oceanic Meat (1990) 20 NSWLR 310;

· the court will strive in dealing with a commercial contract to discern the objective intent of the business relationship or other parameters of a contract in order to give effect to that which the parties may be seen to have bargained for. But always it is to the words of the document that the court must attend, looking in that regard to the whole of the document to discern the parties’ intent;

· in interpreting the expressions used by the parties, the Court will consider them in their context and as a whole. The court should as a matter of course take into account the objective background of the transaction, that is, its factual matrix, its genesis and aim, and the common assumptions: TCN Channel Nine v Hayden Enterprises Pty Limited (1989) 16 NSWLR 130; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289;

· where mechanical provisions intended to operate over an extended period of time are concerned the court endeavours to follow the mechanics and provisions expressed in the contract in the endeavour to follow, always by looking at the manner in which the matter is expressed, how the parties saw the contract as a working guide to the way forward;

· most recently, the High Court has observed in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 at 292-293 that:

Codelfa

"presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating".

Codelfa

“The meaning of a written contract may be illuminated by evidence of facts to which the writing refers, for the symbols of language convey meaning according to the circumstances in which they are used.””;

· to similar effect is the observation of Gleeson CJ, Gummow and Hayne JJ in Maggbury Pty Limited v Hafele Australia Pty Limited (2001) 76 ALJR 246 at 248 (para 11), quoting with approval Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-913 to the effect that interpretation of a written contract involves the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of contracting;

· in Investors Compensation Scheme Ltd at 912 – 913, it was said that:

“The background knowledge which a reasonable person in the position of the parties will be regarded as having, for the purposes of the construction of contracts, includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man with the proviso that it should have been reasonably available to the parties”.

Prenn v Simmonds

: Lakatoi Universal v Walker

· taking account of the context requires that particular terms be considered in light of the whole contract, and particular phrases in the light of their setting: McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579.

The proper construction of the Termination Clause 14.1

73 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 is a recent decision by the Court of Appeal where an examination, albeit obiter dicta, is to be found in relation to the proper construction and approach to be taken to contractual termination clauses requiring the giving of notices to cure breaches.

74 Clause 15.2 was in the following terms:

75 HJPL had submitted that clause 15.2 was concerned with a breach which was capable of cure, not one which was capable of being cured within a specified number of days. Rolfe J held this to be the proper construction of the clause, “the purpose of each clause [being] to give the party [in breach] the opportunity of curing the position for the future”. His Honour had concluded:

“A clause such as 15.2 is aimed at providing certainty. On one view the approach taken by Mr Oslington leads to uncertainty. It leaves open the argument, if no notice to cure is given, whether the breach was capable of being cured, such as to require the giving of a notice. However, if the notice is given and the breach is not cured the arguments are confined to whether there was a breach and whether it was cured within the time specified. On this basis the giving of notice is, in my opinion, a condition precedent to the right to terminate.”

76 The judgment of the Court of Appeal included the following:

Batson v De Carvalho

L Schuler AG v Wickman Machine Tool Sales Ltd

Tricontinental Corp Ltd v HDFI Ltd

]

L Schuler AG v Wickman Machine Tool Sales Ltd

The question then is what is meant in this context by the word “remedy”

so that matters are put right for the future. I think that the latter is the more natural meaning

Batson v de Carvalho

“To ‘remedy’ a breach is not to perform the impossible task of wiping it out - of producing the same condition of affairs as if the breach had never occurred. It is to set things right for the future, and that may be done even though they have for some period not been right, and even though that may have caused some damage to the lessor. ... A breach may be remedied ... even though the time for doing the thing under the covenant may have passed ...”

Tricontinental Corp v HDFI

Bunge Corporation, New York v Tradax Export SA, Panama

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd

Batson v De Carvalho

If that is that case, then one fixes upon the effect of the default in the given circumstances

Tricontinental

[123] Waddell AJA said at 722-723:

Batson v De Carvalho

[124] In our opinion, these authorities support his Honour's construction of cl15.2, which we consider to be correct.

77 It will be recalled that the termination provision presently before the Court provides as follows:

(a) the party allegedly in breach is given written notice specifying the nature of the breach (this notice must be clearly headed “Breach of Agreement – Notice to Cure”); and

78 The commencement provision that no breach "is a material breach" seems to me to be a deeming provision. Effectively the parties have been content to regulate their respective entitlement to claim any breach to be a ‘material breach’ by this requirement for the giving of notice. They have effectively conditioned their entitlement to rely upon any breach as a material breach, upon the giving of the notice provided for in clause 14.1. The parties have a right [proscribed by exceptions not presently material] which the law protects, to bind themselves by contract to such terms as they see fit.

79 In terms of contracts which expressly provide for an entitlement to rescind in the event of a specified failure by the other to perform, The Law of Contract, 6th ed by G H Treitel makes plain [at 586-587], that the very purpose of such clauses which make express provision for determination is to prevent disputes from arising as to the often difficult question whether a particular failure in performance is sufficiently serious to justify rescission and they take effect, even though there is no substantial failure. The willingness of the courts to give effect to express provisions for determination in that sort of circumstance is based on the assumption that the parties have bargained on more or less equal terms. To my mind, subject only to one matter, precisely the same type of reasoning underpins the proposition that once the parties have bargained, as here, for the clause 14.1 procedure, they should be held to their bargain.

80 The matter to which I refer concerns the necessity to draw a distinction between on the one hand, a circumstance involving a repudiation by one of the parties in terms of the evincing of an intention no longer to be bound by the contract, and on the other hand, a circumstance where the claimed repudiation falls short of such of an express repudiation. Clause 14.1 did not deal with the former situation but it did deal with the latter. And this is a latter situation case in which the claimed repudiation is to be inferred from a range of conduct said to constitute breaches of the Agreement [cf defendants’ final submissions MFI D4 at paragraph 26]. Because that is so, the Valance parties were obliged to utilise the clause 14.1 procedure before being entitled to terminate.

81 In my view clause 14.1 provided a comprehensive procedure for the termination of the Agreement, at least in the circumstances which applied here. Outside of situations of an express repudiation, the provisions of the common law were intended by the parties not to apply. But if contrary to this view, the common law had applied concurrently with the provisions of clause 14.1, in my view none of the alleged breaches of the Agreement put forward by the Valance parties justified them in any view that Biscayne had so conducted itself as to evince an intention no longer to be bound by the Agreement.

82 The very same reasoning represents the approach taken by the Full Federal Court in Amann Aviation Pty Ltd v Commonwealth (1990) 22 FCR 527. In that case clause 2.24 headed "Termination" had provided inter alia:

Thus no commission is payable except on a “performance … fully organised ” by the Manager …”; or in relation to the “exploitation of any sound recording where such exploitation is fully organised by the Manager …”.

It would have been a simple matter of drafting to focus on the “recording” or “writing” of the sound recording or musical composition as opposed to its “exploitation”; “exploitation” would be such things as entering into a new licence of such a sound recording; licensing it for use on the soundtrack to a cinematograph film (eg. synchronisation rights); and the like. The clause does not, for example say that exploitation of any sound recording “where the recording was fully organised by the Manager”; it focuses on the “exploitation” being fully organised.

Again, clause 8.1(b) would not be required at all if a construction were give to “Gross Receipts” pursuant to which, if the “Artist’s Activity” took place during the Term, it did not matter when the “amount [was] received”.

Accordingly, even if Biscayne succeeds in claiming commission for a period after 20 January 2002 (or 27 September 2002) its claim would be limited up to 29 March (or, at the latest, 18 May) 2003. The amount calculated even provisionally by Biscayne reaches well beyond those dates.

Finding

219 There are some textual difficulties in construing the material provisions dealing with commission.

220 It seems to me that clause 7 should be read as dealing with the subject of pre-termination commission to be contraposed to clause 8 which deals with the subject of post-termination commission.

221 The definition of "Gross Receipts" in its application to clause 7.1 is a reference to the total of all amounts in whatever form as are:

· received by the Artist during the Term; but also being

· received in respect of the Artist's Activities during the Term.

222 Clause 8.1 then deals with payments which are to be made following the termination of the Agreement. In this regard:

· clause 8.1 (a) deals with the commissions provided for in clause 7, but now deals with:

· income earned [in the sense of the artist having carried out the work in relation to the relevant activities], and being so earned from those activities during the Term, but being

· income only received after the expiration or termination of the Agreement;

· an expansion from the entitlement to commission is now provided for by clause 8.1 (b) [commission based upon the formula set out in Schedule 1 becomes payable, in the sense that where certain matters have been fully organised by the Manager prior to the expiration of the Term, then subject to the deductions provided for in clause 7.2, 7.3 and 7.4, commission based upon the formula set out in Schedule 1 ("clause 8.1 (b) commission") is so payable];

· Clause 8.1 (b) commission is payable on all income received [by Valance Corp or by Ms Valance] after the expiration or termination of the Agreement from:

· any performance by Ms Valance which had been fully organised by Biscayne before the expiration of the Agreement, but where the performance occurred after the expiration of the Agreement, and

· the exploitation of any sound recording which had been recorded during the Term, where such exploitation was fully organised by Biscayne prior to the expiration of the Term, and

· the exploitation of any musical composition which had been written during the Term, where such exploitation was fully organised by Biscayne prior to the expiration of the Term.

223 Generally these findings appear to follow and accept certain of the plaintiff’s submissions in this regard including the following:

“13 The claim relies upon the plain words of clause 7.1 of the Management Agreement when read with the definition of “gross receipts” in clause 1. See Overview Submission, para 11 and oral opening, Tp 35.12 to 36.16. The presently relevant part of that definition provides that “ “Gross receipts” means the total of all amounts, in whatever form received by the Artist or on the Artist’s behalf, in respect of the Artist Activities during the Term and throughout the Territory ”.

14 It is plain that on the proper construction of the definition the phrase “ during the Term ” does not qualify the word “ received ”, because (i) the placement of commas around the phrase “ in whatever form received by the Artist or on the Artist’s behalf ” indicates that it is descriptive of the “ amounts ” referred to and does not qualify later words in the definition, and (ii) the words “ in respect of ” establish a notional division of the definition such that the “ amounts ” are described in the first part and the “ Artist Activities ” are described in the second. Further, it would defy commercial common sense to suggest that a commission provision in a management agreement would not operate upon income from artist activities carried out within the term and territory of the agreement if payment to the artist happened to occur a day after the expiry of the term.

gross receipts

of all income earned during the Term from the Artist’s Activities, but received after the expiration or termination of this Agreement

gross receipts

income earned during the Term

224 The present context of course concerns the prevention or cutting out by Valance Corp and by Ms Valance of the managing agent from its otherwise entitlement to organise performances by Ms Valance before the end of the term and from its entitlement to organise for the exploitation of sound recordings recorded or musical compositions written during the Term. But for the wrongful purported termination by the first termination letter, Biscayne had the exclusive rights as manager of Ms Valance as artist for the Term, and Valance Corp had covenanted not to execute, negotiate, or agree to any contract or undertaking whatever regarding her career without the prior written consent of Biscayne.

225 One question which arises concerns whether or not, and if so in what way, Biscayne puts forward the proposition that in relation to the assessment of damages, it does not lie in the mouth of the Valance parties to rely upon their own wrongdoing. [cf written submissions on damages para 44]. This is one of a number of areas requiring clarification and specificity in respect of which the parties will be given leave to further address on damages including loss of opportunity. In terms of the precision of the breaches of contract terms litigated and made out, the Court labours under some difficulty because of the uncertainty as to what particulars have been furnished, there being a number of references to particulars “to be provided in due course” to be found in the breach of contract paragraphs in the Summons. Further in “the manner in which the matter was litigated” there appear to have been a number of specific matters in respect of which evidence has been adduced and with which both parties have treated in final address. For those reasons the precise findings in respect of the breaches of contract terms which “have been litigated” and made out will be handed down following the parties having had an opportunity to read this judgment and to address in relation to that matter. Suffice it to say that as the judgment makes plain, in general terms at the least the following breaches have been made out:

· Valance Corp and Valance have since from a period in 2001, excluded the plaintiff from the management of or involvement in the activities of Valance in the entertainment industry throughout the world;

· Valance Corp and Valance have from a period in 2001, failed to refer all enquiries regarding the activities of Valance within the entertainment industry to the plaintiff;

· Valance Corp has not paid commissions due to the plaintiff;

· from a period during 2001 Valance Corp continued negotiations for, and subsequently agreed to and executed sundry agreements relating to the activities of Valance in the entertainment industry, without the notification or prior approval of the plaintiff; and

· Valance Corp failed to properly observe and perform its obligations or conditions under the Management Agreement and Valance did not immediately ensure the performance of such obligations or conditions.

226 Whether the plaintiff still presses a finding of breach on the basis that Valance Corp had not, at least until discovery, provided the plaintiff with a full statement of income and expenditure in respect of the activities of Valance in the entertainment industry may be the subject of further address.

227 In the result the very close attention given to the proper construction of clauses 7 and 8 dealt with above arguably becomes relevant only in relation to activities post the expiration of the term. The breaches of Agreement prior to the term expiring give rise to a separate head of damages and no double counting is permissible.

The taking of an account

228 Biscayne has claimed an entitlement to an order for the taking of an account of the commission due to it under the Agreement.

229 The issue received attention in Town & Country Property Management Services Pty Ltd v Kaltoum [2002] NSWSC 166 where Campbell J put the matter as follows:

78 The remedy which the plaintiffs seek in relation to this breach, is damages or an account of profits. The cause of action on which the plaintiffs sue is breach of contract. The only remedy which the common law provides for breach of contract, is damages.

79 Equity will sometimes, in its auxiliary jurisdiction, grant an injunction against the repetition or continuance of a breach of contract, but no such injunction was, by the time of the hearing, sought.

80 There are some judicial statements which suggest that an account of profits is not available as a remedy for a breach of contract, but rather that, in circumstances where a breach of contract is established, it must be shown that there is also a breach of an equitable obligation (such as breach of a fiduciary duty, or breach of an obligation concerning the use of confidential information) before an account of profits will flow ( Walden Properties Ltd v Beaver Properties Pty Ltd [1973] 2 NSWLR 815 at 835 E-F per Hope JA, Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 180 per Fullagar J).

81 However, there are also some cases where an account of profits has been awarded for breach of a legal obligation. Thus an account of profits is one of the remedies available for the tort of passing off ( AG Spalding Bros v AW Gamage Ltd [1914-15] All ER Rep 147; Colbeam Palmer Ltd v Stock Affilliates Pty Ltd (1968) 122 CLR 25 at 32 per Windeyer J). Even in relation to the availability of a remedy of an account of profits for the tort of passing off, however, it appears that it was not the mere commission of the tort which gave rise to the equitable remedy - rather, the Equity Courts looked to see whether, as well, there were factors present (whether it be the protection of property, or the existence of fraud) which justified the intervention of the Equity Court ( Colbeam Palmer Ltd v Stock Affilliates Pty Ltd , supra , at 33.8-34.3).

Hospital Products Limited v United States Surgical Corporation

"...should properly be seen as imposed as equitable relief appropriate to the particular circumstances of the case rather than as arising from a breach of some fiduciary duty flowing from an identified fiduciary relationship." (At 124), and

83 This view of Deane J was a dissenting view. What one can draw from it, though, is that even if an account of profits is sometimes available in circumstances where there has been a breach of contract, something more than a mere breach of contract is needed to demonstrate the appropriateness of awarding the equitable remedy. The same conclusion follows from Attorney General v Blake [2000] UKHL 45; [2001] 1 AC 268.

84 Referring to the remedy as "account of profits" is shorthand. There are two distinct components to the remedy - first, that an account should be taken of the profits which the defendant has earned, and on the second, that the amount of profits so found to have been earned should be paid by the defendant to the plaintiff. As is the case with any remedy which equity grants in its auxiliary jurisdiction, an Equity Court needs to be given a reason, which is sufficient in accordance with equity principles, why it should grant an equitable remedy in addition to, or in lieu of, the ordinary common law remedy.

230 In my view this restatement of the present position in terms of principle is entirely accurate. I note in particular that the conclusion that an account of profits was a just response to the particular breach of contract before the House of Lords, was reached by a process of analogy:

· first with cases such as Wrotham Park Estate Co v Parkside Homes Ltd [1974] 1 WLR 798 in which damages had been awarded to ensure that the unsuccessful defendant does not unjustly enjoy the benefit of his breach of contract; and

· secondly, with breach of fiduciary duty where an account of profits is an unexceptionable remedy.

[cf "Account of profits for breach of contract", Recent Cases by Mr Justice P W Young December 2000, 74 ALJ 817]

231 The matter was put as follows by the Full Court [Hill, Emmett and Finkelstein JJ] in Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157:

Robinson v Harman

Teacher v Calder

Tito v Waddell (No. 2)

"[I]t is fundamental to all questions of damages that they are to compensate the plaintiff for his loss or injury by putting him in the same position he would have been in had he not suffered the wrong. The question is not one of making the defendant disgorge what he has saved by committing the wrong but one of compensating the plaintiff."

Wenham v Ella

Commonwealth v Amann Aviation Pty

Ltd

Amann Aviation

"The corollary of the principle in Robinson v Harman is that a plaintiff is not entitled, by the award of damages upon breach, to be placed in a superior position to that which he or she would have been in had the contract been performed."

If he has suffered no loss, he is not entitled to be compensated. In an appropriate case, the aggrieved party may be able to recover (by a claim in restitution) benefits that he has made available to the wrongdoer; for example, he may be able to recover the price under an incomplete contract or recover possession of goods sold but not paid for. Presently, however, it would be inconsistent with the current principles laid down by the High Court to confer a windfall on a plaintiff under the guise of damages for breach of contract.”

232 As Justice Young commented:

"contractual obligations are correctly understood as being the obligation to perform or pay damages for failing to do so-the primary and the secondary obligation" .

Commonwealth v Amann Aviation Pty Ltd

233 I have given close consideration to the question of whether or not the circumstances presently before the Court which do, it seems to me, show a calculated disregard of the rights of Biscayne as well as a cynical pursuit of benefit [cf Prior v Lansdowne Press Pty Ltd [1977] VR 65 at 70], Biscayne should be seen to be entitled to an account of profits. Ultimately however it seems to me that this remedy is out of reach in this case.

234 Erbacher "An Account of Profits for a Breach of Contract (Attorney General v Blake)” 29 Australian Business Law Review, February 2001, 73 at 76-77 suggests that the House of Lords formulated an impermissibly wide discretion to order an account of profits, holding that it would be dependent on the facts of each case as to whether the discretion should be exercised:

Attorney General v Blake

Wrotham Park

Surrey County Council v Bredero Homes Ltd

235 An unpublished paper "Focus on the ‘Most Wrong’ Equity Cases 1990-2003”, delivered by Barrett J at the Supreme Court Annual Conference in August 2003, targets Attorney General v Black for that dubious distinction. The paper comprises a detailed analysis of sundry references to the decision of the House of Lords in Australia, the United Kingdom and Canada. The paper includes the following:

“The applicability of the Blake doctrine has been seen in all the English cases as turning on the question whether the particular circumstances are of the “exceptional” kind to which the House of Lords referred. Lord Nicholls recognised that his innovation would produce commercial uncertainty. He hastened to attempt to dispel it by saying that an account of profits might be awarded “exceptionally” where “a just response to a breach of contract so requires”. He went on to say something about the “exceptional cases” he had in mind; but, he said, “no fixed rules can be prescribed” – not something, one would think, that seekers after commercial certainty wanted to hear. One important factor, however, will be whether the plaintiff had “a legitimate interest in preventing the defendant’s profit-making activity and hence in depriving him of his profit”. Lord Nicholls found to be of no assistance some other criteria suggested by the Master of the Rolls in the Court of Appeal; and he expressly rejected as insufficient three factors likewise rejected by the Master of the Rolls: the fact that the breach was cynical or deliberate; the fact that the breach enabled the defendant to enter into a more profitable contract elsewhere; and the fact that by entering into a new and more profitable contract, the defendant put it out of his power to perform his contract with the plaintiff…

pacta sunt servanda

236 Whether Attorney General v Black may be resurrected by the appellate tribunals in Australia as otherwise than heretical remains to be seen. Presently the trenchant criticisms of the House of Lord's decision have considerable weight as it seems to me.

237 The present is a case where the conventional remedy for damages is aptly engaged - Biscayne being unable to demonstrate a supererogatory extra-contractual interest, should be compensated by placing it, so far as money can do it, in the same position as it would have been in if the contract had been fully performed on both sides. It cannot be said that not to order an account would abort Biscayne’s rights. The matter ultimately inheres in compensatory damages.

Rulings on evidence

238 During the course of the hearing the Court reserved a decision upon whether or not particular witnesses had been shown within section 79 of the Evidence Act 1995, by their training, study or experience, to have acquired specialised knowledge on the basis wholly or partly of which to be in a position to express particular opinions, such opinions having been included in their affidavits or in supplementary evidence in chief given in the witness box. Cross-examination took place upon the accepted basis that the final judgment would include a ruling as to whether any of the evidence going to such specialised knowledge and opinions would be allowed.

239 This is not an occasion when the parameters of section 79 require detailed examination. The section was the subject of close examination in Idoport v National Australia Bank [2001] NSWSC 123 and the approach there taken as to the principles which inform the proper construction of section 79 is adopted.

Mr Hollingsworth

240 Mr Hollingsworth was put forward as having specialised knowledge in relation to what were the usual functions of a manager especially in dealings with record companies. He had worked in the music business for some 17 years from the age of 21, his experience being with major record companies in promotions and Artist and Repertoire ("A & R"). The position he started in was initially radio promotions with Sony UK. This involved the taking of artist’s recordings to radio stations and convincing radio stations to play records, to promote the artist and arrange interviews and setting up a media campaign for radio. During that period of time of approximately 12 to 13 years, he had dealt with managers for popular artists. Those dealings included sitting down and discussing game plans and strategies with the artist’s manager, generally pertaining to radio promotions.

241 Following that period he went into the A & R area which involved the establishing, finding and developing of artists and the presenting of those artists to the record company to buy into, support, and then to market. His evidence was that there was a particular category of experience and real-world job activity which can be described as “artist and repertoire”, and that there was another area to that, which was different, and which could be described as a “managing agent” to artist field of endeavour and area of specialty. In relation to the second and different area he had never himself been in a managing-agent relationship. He gave the following further evidence:

Q. And then you go on in the next sentence, in the next paragraph, to say, "In the course of my activities in A&R I have had frequent and extensive experience with artists' managers"?
A. Yes.

Q. And then you elaborate on that. Can I ask you this: is what you say about what an artist's manager does or doesn't do based on your experience that you have had with artists and their managers while you have been in A&R?
A. Both promotions and A&R.

Q. Both radio promotions and A&R?
A. Yes.

Q. You haven't, I take it, attended any courses in entertainment, artists' management or anything of that nature?
A. No.

Q. You haven't studied the behavioural characteristics of artists' managers at large in a formal sense?
A. There's no better education than working in the industry.

Q. But the views you express are based on the particular experiences you have had with particular artists and their managers?
A. Yes.

Q. And you wouldn't, for instance, consider yourself qualified to express a view on what a competent artist's manager should achieve by way of contractual negotiations for a recording contract?
A. No, but I'm aware of the parameters.

Q. Yes, but you couldn't say whether it's not within your knowledge and experience to say, "That manager is negligent; that manager is not"?
A. No, no.

HIS HONOUR: Q. Can I ask, have you studied extensively or at all the different types of terms which may appear in one contract between the managing agent and the artist and another?
A. No. ….

GARNSEY: Q. In your affidavit, you have given evidence about what a manager should do in relation to telephone calls, attendances and looking after an artist, and the answer was not telephone calls but --
A. Well, between an artist and a manager, I wouldn't know about that, but between myself and an artist manager, obviously, yes, I would be aware of that.

HIS HONOUR: Q. And why do you say that "between an artist and a manager, I wouldn't know about that"?
A. Because a manager manages an artist. That's between the artist and the manager. It's obviously, you know, not anything to do with myself in that respect.

HIS HONOUR: Yes, very well.

GARNSEY: Q. And it's correct to say, isn't it, that the views you have expressed on what an artist or rather a manager does for an artist on the occasions to which you have referred, those views are based on what you have seen particular managers do for particular artists on particular occasions?
A. Yes.

242 In my view Mr Hollingsworth is not shown by his training, study or experience to have acquired specialised knowledge on the basis wholly or partly of which to be in a position to express the views for which he was put forward as to the usual functions of a manager or as to the usual functions of a manager especially in dealings with record companies. He seemed especially to accept that he would not know about what a manager should do in looking after an artist but that his particular area of A & R was that in which he was qualified to express a view. It was not within his knowledge or experience to say that a particular manager was or was not negligent in that he had not studied extensively nor at all, the different types of terms which may appear in one contract between a managing agent and an artist and those which may appear in another such contract. His evidence was that he would not know as between an artist and a manager, what the manager should do: "That's between the artist and the manager. It's obviously… not anything to do with myself in that respect". Granted that he did have views which were based on his observations of particular managers and the work that they had carried out for particular artists on particular occasions, I am not satisfied that he has been shown to have acquired the specialised knowledge requisite to give an opinion on the usual functions of a manager in a managing agent-artist contractual relationship. In consequence his evidence, to the extent it was put forward as grounded upon section 79 specialised knowledge, is disallowed.

Mr Klippel

243 Mr Klippel on the other hand does seem to me to have been shown by his training, study or experience to have acquired the necessary specialised knowledge upon which wholly or partly to be in a position to express an opinion as to the usual functions of a manager/managing agent in contract with an artist. He had been involved in the Australian music industry for 14 years, largely as a songwriter/music producer. On a number of occasions he personally had had managers. He had worked with other managers often. His world was far wider than that of A & R. In consequence all of his evidence is allowed.

Mr Fowler

244 Mr Fowler was also put forward as having specialised knowledge upon the basis of which to be in a position to express opinions as to the usual functions of an artist's manager in particular in dealings with recording companies. It does seem to me that his identified training, study or experience, having been an artist's manager since about 1985 and having managed a number of bands and being aware of the activities being undertaken for and on behalf of many artists, shows that he has acquired the specialised knowledge upon the basis of which to be in a position to express opinions as to the usual functions of an artist's manager, in particular in dealings with record companies. In consequence all of his evidence is allowed.

Mr Kirby

245 Ultimately the defendants do not put Mr Kirby forward as a person with section 79 specialised knowledge. [Transcript 827]

Mr Benson

246 Mr Benson had been involved in the music industry in the United Kingdom, Europe and elsewhere for the past 30 years in both an artistic and professional capacity. He was a musician, songwriter and producer for most of those years and had been a manager for the past 15 years. He had had extensive experience as a manager in the music industry. He was clearly a person who had had the training, study or experience from which he had acquired the specialised knowledge on the basis of which wholly or partly to be in a position to express opinions as to the usual functions of an artist's manager. In consequence all of his evidence is allowed.

247 It is appropriate to note that even had the evidence given by Mr Hollingsworth which had been put forward a satisfying section 79 of the Evidence Act been held to be admissible as based upon the requisite specialised knowledge, the findings of the Court would have been no different. Indeed all of the evidence given by those put forward as having specialised knowledge as to the usual functions of an artist's manager in dealings with others including the artist, has had to be weighed against the very particular set of circumstances here thrown up by the evidence for reasons clearly spelled out in the judgment.

Leave to further address/ Short Minutes of Order

248 As was made plain during the course of the taking of final submissions, it does seem convenient to leave a number of remaining questions for further address once the parties have had an opportunity to read the above judgment. The particular questions which remain for further address generally go to causation and damages and to one or two matters mentioned in the Judgment. Notwithstanding that detailed written and oral submissions going to relief were received, it may well be that those submissions can be more narrowly focused once the parties have had an opportunity to read the judgment. There is always an opportunity that the parties may now reach agreement on some of the calculations. Short minutes of Order will of course also require to be brought in.

Transcript anomalies

249 Preparation of the judgment has regrettably thrown up some transcript anomalies which were not apparent to me during the hearing of the proceedings. Sometimes the hardcopy version on which I was working may be one or two pages out from the softcopy version from which I was also working. My Research Assistant generally worked from her own hardcopy version which we intended to be regarded as the official version, along with the softcopy version. However, careful checking has now revealed that her hardcopy version was even somewhat different from the two versions from which I worked. As she was responsible for the transcript references now included in the chronology appended to the judgment, it is her version which correctly identifies that pagination. In all the circumstances the convenient course will be to include in the official court file both the hardcopy version from which I worked as well as the hardcopy version from which she worked, as well as a CD with the softcopy version.

I certify that paragraphs 1 - 249
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 3October 2003

___________________
Susan Piggott
Associate

3 October 2003

Last Modified: 10/09/2003

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Citations

Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874

Most Recent Citation

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CITATION:	Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors [2003] NSWSC 874
HEARING DATE(S):	15/09/03, 16/09/03, 17/09/03, 18/09/03, 19/09/03, 22/09/03, 23/09/03, 24/09/03
JUDGMENT DATE:	3 October 2003
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	Purported termination of Management Agreement by Valance parties held invalid. Plaintiff's causes of action in tort for wrongful inducement of breach of contract and for conspiracy to injure by unlawful means not made out. Leave to further address on disparate issues including quantum of damages.
CATCHWORDS:	Contracts - Contract of agency for personal services - Artist and artist's company ["the Company"] enter into contract appointing Managing Agent ["the agent"] as sole and exclusive manager of artist in the entertainment industry - Date from which contract bound the parties - Principles of construction - Principles governing implication of terms - Termination clause providing that no breach of the contract is a material breach giving the other party the right to terminate unless written notice is given followed by failure to cure breach within 30 days of notice - Proper construction of termination clause - Purported termination by artist and company of contract without giving the 30 day notice to agent - Subsequent notice given eight months later without prejudice to validity of earlier termination and purporting to give the 30 day notice - Repudiation of contract - Necessity to draw a distinction between on the one hand, a circumstance involving a repudiation by one of the parties in terms of the evincing of an intention no longer to be bound by the contract and on the other hand, a circumstance where the claimed repudiation falls short of an express repudiation - Tort - Interference with contractual relations - Inducement of breach of contract - Principles - Person committing the tort must be a third party standing outside the contractual relation being interfered with - Company having only one appointed director - Artist found to be a de facto director - Whether artist as de fact director liable for the tort of inducing breach of contract where artist and sole appointed director determine that company should wrongly terminate the contract - Conspiracy - Conspiracy to injure by unlawful means - Principles - Intent to injure is a reference to the real purpose which the conspirators are trying to achieve - Equity - Remedies - Action for taking of an account - Plaintiff suing on cause of action for breach of contract - Where a breach of contract is established, it must be shown that there is also a breach of an equitable obligation (such as breach of a fiduciary duty, or breach of an obligation concerning the use of confidential information) before an account of profits will flow - Damages the only remedy which the common law provides for breach of contract - Damages - Damages for loss of chance
LEGISLATION CITED:	Conveyancing Act 1919 Corporations Act 2001 (Cth) Evidence Act 1995 Fair Trading Act 1987 Supreme Court Act 1970 Trade Practice Act 1974
CASES CITED:	AG Spalding Bros v AW Gamage Ltd [1914-15] All ER Rep 147 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 Alcatel Australia Ltd v Scarella (1998) 44 NSWLR 349 Amann Aviation Pty Ltd v Commonwealth (1990) 22 FCR 527 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Ansett Transport Industries (Operations) Pty Limited v Commonwealth (1977) 139 CLR 54 ASIC v Adler [2002] NSWSC 171 Attorney General v Blake [2000] UKHL 45; [2001] 1 AC 268 Australian Broadcasting Commission v Australian Performing Right Association (1972) 129 CLR 99 Australian Securities Commission v AS Nominees Ltd (1995) 133 ALR 1 Batson v De Carvalho (1948) 48 SR (NSW) 417 Beaton v McDivitt (1987) 13 NSWLR 162 Bennett v Minister of Community Welfare (1992) 176 CLR 148 BP Refinery (Westernport Port) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 Briginshaw v Briginshaw (1938) 60 CLR 336 British Motor Trade Association v Salvadori [1949] Ch 556 Bunge Corporation, New York v Tradax Export SA Panama [1981] 1 WLR 711 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 Butt v M'Donald (1896) 7 QLJ 68 Butts v O'Dwyer (1952) 87 CLR 267 Byrne v Australian Airlines (1995) 185 CLR 411 Castlemaine Tooheys Ltd v Carlton and United Breweries Ltd (1987) 10 NSWLR 468 Chaplin v Hicks [1911] 2 KB 786 Coal Cliff Collieries v Sijehama Pty Ltd (1991) 24 NSWLR 1 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurances (Australia Ltd) (1986) 160 CLR 226 Corporate Affairs Commission v Drysdale (1978) 141 CLR 236 Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 Devico Pty Ltd v Sydney Cove Redevelopment Authority (unreported, Supreme Court of New South Wales, 15 April 1990, BC9102111) Direct Acceptance Finance Ltd v Cumberland Furnishing Pty Ltd [1965] NSWR 1504 Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288 Fatimi Pty Ltd v Bryant [2002] NSWSC 750 Ferguson v Wilson (1866) LR 2 Ch App 77 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Fink v Fink (1946) 74 CLR 127 First Energy (UK) Ltd v Hungarian International Bank Limited [1993] 2 Lloyd's Report 194 Forslind v Bechely-Crundall [1992] SC (HL) 173 Foxeden Pty Ltd v IOOF Building Society Ltd [2003] VSC 356 George Hudson Holdings Ltd v Rudder (1973) 128 CLR 387 George v Pottinger [1969] Qd R 101 Gold Coast City Council v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 Hamlyn & Co v Wood & Co [1891] 2 QB 488 Hardwick Game Farm v Suffolk Agricultural Poultry and Producers Association [1969] 2 AC 31 Heimann v Commonwealth (1938) 38 SR (NSW) 691 Hide & Skin Trading v Oceanic Meat (1990) 20 NSWLR 310 Himbleton Pty Ltd v Kumagai (NSW) Pty Ltd (1991) 29 NSWLR 44 H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Hughes Bros Pty Ltd v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91 Hungry Jacks v Burger King [1999] NSWSC 1029 Idoport Pty Ltd v National Australia Bank Limited [2001] NSWSC 328 Idoport v National Australia Bank [2001] NSWSC 123 International Life Assurance Society, ex parte Blood, Re (1870) LR 9 Eq 316 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Kitchen v Royal Air Force Association [1958] 1 WLR 563 Lagunas Nitrate Co. v Lagunas Syndicate [1899] 2 Ch 392 Lakatoi Universal Pty Ltd v LA Walker [2000] NSWSC 113 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Liverpool City Council v Irwin [1977] AC 239 LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74 Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 Lonrho Plc v Fayed [1992] 1 AC 448 Lumley & Gye (1853) 2 E & B 216 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 Mackay v Dick (1881) 6 App Cas 251 McCutcheon v David MacBrayne [1964] 1 WLR 125 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 Maggbury Pty Limited v Hafele Australia Pty Limited (2001) 76 ALJR 246 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [2001] 2 WLR 170 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 Marshall v Colonial Bank of Australia (1904) 1 CLR 632 Mistmorn Pty Ltd (in liq) v Yasseen (1996) 21 ACSR 173 Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 166 Moorhouse v Angus 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PARTIES :	Biscayne Partners Pty Ltd (Plaintiff) Valance Corp Pty Ltd (First Defendant) Holly Rachel Vukadinovic (also known as Holly Valance) (Second Defendant) Rachel Jane Stevens (Third Defendant)
FILE NUMBER(S):	SC 50199/02
COUNSEL:	Mr JJ Garnsey QC, Mr R Lancaster, Mr JP Donohoe (Plaintiff) Mr R Cobden, Ms R Rana (Defendants)
SOLICITORS:	Tress Cocks & Maddox (Plaintiff) Henry Davis York (Defendants)