Conway v Critchley - [2012] NSWSC 1405

Supreme Court

New South Wales

Medium Neutral Citation: Conway v Critchley [2012] NSWSC 1405
Hearing dates: 7, 12, 13 and 14 November 2012
Decision date: 15 November 2012
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See paragraph [39]

Catchwords: CONTRACT - formation - intention to create legal relations - loosely formed and incomplete shared idea based partly on common expectations and mutual optimism - not sufficient to amount to contract
Cases Cited: ABC v XIVth Commonwealth Games (1988) 18 NSWLR 540
Ermogenous v Greek Orthodox Community [2002] HCA 8; (2002) 209 CLR 95
South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130
Watson v Foxman (1995) 49 NSWLR 315
Category: Separate question
Parties: David Conway - plaintiff
Stephen Christopher Critchley - first defendant
Mudgee Wines Pty Limited - second defendant
Eurunderee Wines Pty Limited - third defendant
William James Whaley - fourth defendant
Jane Margaret McLean - fifth defendant
Mark Norman Thompson - sixth defendant
Representation: Counsel:
G W McGrath SC - for the plaintiff
C D Freeman - for the first to fifth defendants
No appearance for the sixth defendant
Solicitors:
Hall Partners - for the plaintiff
Leonard Legal - for the first to fifth defendants
No appearance for the sixth defendant

File Number(s): 2008/282302

Judgment

Introduction

This is the determination of two separate questions, both of which are primarily questions of fact. The first concerns whether an agreement was made concerning the equal shareholding in the second and third defendants, as alleged by the plaintiff. The second concerns the existence of certain wine storage tanks and the plaintiff's entitlement to ownership and possession of them.

In the case of both issues, I have not been assisted by the evidence of the plaintiff. I am afraid to say that he was an unconvincing and unsatisfactory witness. His evidence exhibited all those features of which McLelland J warned in Watson v Foxman (1995) 49 NSWLR 315 at 319:

[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

In addition, not only was the plaintiff compelled during his cross-examination to concede many inaccuracies in documents which he had prepared and affidavits which he had sworn, but I am satisfied that in relation to certain events to which I will return, he appears to have behaved dishonestly with the intention of obtaining a financial benefit. Except where his evidence was against interest, I have not felt able to place any reliance on it. In arriving at my…

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 Conway v Critchley

Details

AGLC: Conway v Critchley [2012] NSWSC 1405
Case: [2012] NSWSC 1405
Decision Date: 15 November 2012

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Conway, and the defendant, Critchley. The plaintiff sought to enforce an alleged agreement made with the defendant concerning a shared venture. The case was heard in the Supreme Court of Queensland. The court was tasked with determining whether the informal discussions between the parties constituted a legally binding contract.

The primary issue before the court was whether the parties had reached an agreement that was sufficiently certain and complete to amount to a binding contract. The court examined the nature of the discussions and the intentions of the parties, considering whether there was a mutual understanding and intention to be legally bound. The court also looked into the enforceability of an agreement that was loosely formed and based partly on common expectations and mutual optimism.

The court held that the discussions between the parties did not amount to a legally binding contract. The court found that the shared idea was loosely formed and incomplete, and that there was no clear and definite agreement on all essential terms. The court emphasised that for a contract to be enforceable, there must be an intention to create legal relations and a mutual understanding of the terms of the agreement. The court concluded that the parties' mutual optimism and common expectations did not suffice to establish a binding contract. The court dismissed the plaintiff's claim, finding that no contract had been formed.

The court ordered that the plaintiff take nothing by way of his claim. The court further directed that the costs of the proceeding be paid by the plaintiff to the defendant.

Orders