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Cappello v Scrivener

Cappello v Scrivener

Case [2020] NSWSC 1748 7 December 2020

Contract Formation

Implied Terms

Unconscionable Conduct

Contract Law

No judgment structure available for this case.

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Supreme Court

New South Wales

Medium Neutral Citation: Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748
Hearing dates: 2, 3, 4, 5, 6, 11 and 12 November 2020
Date of orders: 7 December 2020
Decision date: 07 December 2020
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
First plaintiff entitled to declaration that there was a partnership with the first defendant and to equitable compensation for breach of that partnership

Catchwords:
CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – where neither party made a note of the agreement – where neither party confirmed to the other in writing an understanding of the agreement – where no one else present when agreement made – where no dispute that a binding agreement was made concerning sharing expenses and profits of the venture – whether agreement was subject to the plaintiff finding buyer for the consolidated sites
CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – whether parties’ post contractual conduct casts light on true nature of the agreement

Cases Cited:
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Management Service Australia Pty Ltd v PM Works Pty Ltd [2017] NSWSC 1743
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Category: Principal judgment
Parties: John Cappello (First Plaintiff)
Shaka Holdings Pty Ltd (Second Plaintiff)
John Sidney Scrivener (First Defendant)
Tuscany Corporation Pty Ltd (Second Defendant)
Representation:
Counsel:
D R Pritchard SC with D W Rayment (Plaintiffs)
D B Studdy SC with L Chapman (Defendants)
Solicitors:
RJI Legal (Plaintiffs)
Marsden Law Group (Defendants)

File Number(s): 2018/129029

Judgment

Decision
Hearing conducted on Microsoft Teams
Credit
Mr Cappello’s steps to secure the site
The critical conversation was on 20 August 2013
Mr Cappello’s affidavit account of the conversation
Mr Scrivener’s affidavit account of the conversation
Generally as to the conversation
Mr Cappello’s evidence before me about the conversation
Mr Scrivener’s evidence before me about the conversation
Post contractual conduct
Events following 20 August 2013
The meeting at the El Phoenician Restaurant
The Bannermans agree to enter a Due Diligence Deed
All three sites secured
Mr Scrivener tells Oracle Mr Cappello is “involved in the purchase”
Mr Scrivener’s negotiations with Oracle
“My joint venture partners”
The Verve Café Meeting
Further negotiations with Mrs Boon and government authorities
Further draft agreement between Tuscany and Oracle
The 88 Rouse Road Put and Call Option Deed
Events in January 2014
Possible sale to Sunland group - the Information Memorandum
“Our vendors”
“How it works”
Events in February 2014
25 February 2014 conversation
26 February 2014 conversation
Mr…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cappello v Scrivener

Details

AGLC: Cappello v Scrivener [2020] NSWSC 1748
Case: [2020] NSWSC 1748
Decision Date: 07 December 2020

CaseChat Overview and Summary

The case of Cappello v Scrivener involved a dispute between two parties over the terms of an oral agreement relating to the consolidation and potential development of three adjoining properties. The agreement was made between the first plaintiff, Cappello, and the first defendant, Scrivener, but there was no written confirmation of the understanding between the parties. Neither party documented the agreement, and no other individuals were present when it was made. Although there was no dispute that a binding agreement had been reached concerning the sharing of expenses and profits from the venture, the question arose as to whether the agreement was contingent upon the plaintiff securing a buyer for the consolidated sites. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the oral agreement between Cappello and Scrivener was subject to the condition that Cappello would find a buyer for the consolidated sites. Additionally, the court considered whether the conduct of the parties following the agreement could provide insight into the true nature of the agreement. The court had to determine whether the actions of the parties, which included joint investment in the project and sharing of expenses and profits, aligned with the terms of the agreement as claimed by Cappello or whether they were consistent with the position of Scrivener, who argued that the agreement was not conditional.

The court found that the oral agreement between Cappello and Scrivener was not subject to the condition that Cappello would find a buyer for the consolidated sites. The court noted that while the agreement was not documented in writing and there was no third-party witness, the conduct of the parties following the agreement indicated a shared understanding and commitment to the venture. The court held that the actions taken by both Cappello and Scrivener, including their joint investment and sharing of expenses and profits, suggested a binding agreement that did not require Cappello to secure a buyer for the sites as a precondition. Therefore, the court ruled in favour of Cappello, affirming that the agreement was binding and enforceable as it stood.

The court ordered that the agreement between Cappello and Scrivener concerning the consolidation and development of the three adjoining sites was valid and enforceable. The court further directed that the parties were to continue to share the expenses and profits of the venture as per the terms of their agreement. The court did not impose any additional conditions or requirements on the agreement, and it was left to the parties to manage the ongoing development of the sites in accordance with their shared understanding.

Orders