CVC v Howship - [2000] NSWSC 1189

CITATION: CVC v Howship [2000] NSWSC 1189

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 50170/1999

HEARING DATE(S): 20/11/00, 21/11/00, 22/11/00, 23/11/00, 24/11/00, 27/11/00, 28/11/00, 29/11/00, 30/11/00, 01/12/00

JUDGMENT DATE: 15 December 2000

PARTIES :

CVC (Newcastle) Pty Limited - Plaintiff
Howship Holdings Pty Limited - Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr S.D. Rares SC/Mr P.J. Dowdy - Plaintiff
Mr T.E.F. Hughes QC/Mr P.W.J. Gray - Defendant

SOLICITORS: Coudert Brothers - Plaintiff
Clayton Utz - Defendant

CATCHWORDS: Misleading and deceptive conduct - Unconscionable conduct: - Relief granted against Heads of Agreement entered into in consequence of such conduct - Affirmation: Held no affirmation arising in the context of "without prejudice" correspondence aimed at achieving a settlement

LEGISLATION CITED: Trade Practices Act 1974

CASES CITED: Tutt & Anor v Doyle & Anor (1997) 42 NSWLR 10
Akron Securities Limited v Iliffe (1997) 41 NSWLR 353
Henjo Investments Pty Limited & Ors v Collins-Marrickville Pty Limited (No 1) (1988) 39 FCR 546
Gould v Vaggelas (1985) 157 CLR 215
Huntsman Chemical Company Australia Limited v International Pools Australia Limited (1995) 36 NSWLR 242
Sargent v ASL Developments Limited (1974) 131 CLR 634
Haynes v Hurst (1927) 27 SR (NSW) 480
Brown v Smitt (1924) 34 CLR 160
Greig & Davis "Law of Contract" p.868

DECISION: 1. Declarations in accordance with paragraphs 1 and 5 of the Further Amended Summons filed on 20 November 2000; 2. Orders in accordance with paragraphs 2 and 6 thereof; 3. The defendant pay the plaintiff's costs of the proceedings; 4. Exhibits be returned at the expiration of twenty eight days (allowing also for the long vacation period), unless, within that time, an appeal against this judgment has been brought.

I N D E X

PARA
Introduction 1
A Short Consideration 13
(a) The Issues 14
(b) Uncontested Or Established Facts 23
The Pleadings 26
The Evidence Of Mr Gould 87
My View Of Mr Gould’s Evidence 182
The Evidence Of Alexander Damien Harry Beard 186
The Evidence Of Mr Peter Gordon West 230
The Evidence Of Mr Baird 300
The Evidence Of Mr Keel 372
My Conclusions Thus Far 418
A Return To Mr Keel 427
The Evidence Of Caroline Mary Lovell 430
The Evidence Of Mr Fidler 481
A Consideration Of The Evidence 482
The Defence Of Affirmation 483
Conclusions 511
Declarations And Orders 513

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

ROLFE J

FRIDAY, 15 DECEMBER 2000

50170/1999 - CVC (NEWCASTLE) PTY LIMITED v HOWSHIP HOLDINGS PTY LIMITED

JUDGMENT

HIS HONOUR:
Introduction

1 The plaintiff, CVC (Newcastle) Pty Limited, for which Mr S.D. Rares of Senior Counsel and Mr P.J. Dowdy of Counsel appeared, commenced proceedings against the defendant, Howship Holdings Pty Limited, for which Mr T.E.F. Hughes of Queen’s Counsel and Mr P.W.J. Gray of Counsel appeared, by a Summons issued on 24 December 1999. The proceedings went forward on the basis of an Amended Summons, which was filed on 26 October 2000, and the Further Amended…

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 CVC v Howship

Details

AGLC: CVC v Howship [2000] NSWSC 1189
Case: [2000] NSWSC 1189
Decision Date: 15 December 2000

CaseChat Overview and Summary

The parties involved in this case were CVC, the plaintiff, and Howship, the defendant. The dispute was primarily centred around allegations of misleading and deceptive conduct, as well as unconscionable conduct, which arose from the terms of a Heads of Agreement. The case was heard and determined in the Supreme Court of New South Wales. CVC sought relief against the Heads of Agreement on the grounds that it was entered into as a consequence of the alleged misleading and deceptive conduct by Howship.

The legal issues before the court were whether CVC could seek relief against the Heads of Agreement due to the misleading and deceptive conduct and unconscionable conduct of Howship, and whether there was an affirmation of the terms of the agreement in the context of "without prejudice" correspondence aimed at achieving a settlement. The court was required to determine whether the conduct of Howship warranted the grant of relief and whether the "without prejudice" correspondence could be considered as an affirmation of the terms of the Heads of Agreement.

In delivering the judgment, the court found that Howship's conduct was indeed misleading and deceptive, and amounted to unconscionable conduct. The court further held that there was no affirmation of the terms of the Heads of Agreement in the context of the "without prejudice" correspondence. The correspondence was aimed at achieving a settlement and did not constitute an affirmation of the terms of the agreement. As a result, the court granted the relief sought by CVC against the Heads of Agreement. The court's reasoning was based on the clear evidence of misleading and deceptive conduct and unconscionable conduct by Howship, as well as the absence of any affirmation of the terms of the agreement in the "without prejudice" correspondence.

The final orders of the court were that CVC was granted relief against the Heads of Agreement, which effectively rendered the agreement void. The court's decision provided clarity on the nature of "without prejudice" correspondence and its impact on the affirmation of terms in an agreement, as well as reinforcing the importance of holding parties accountable for their misleading and deceptive conduct and unconscionable behaviour.

Orders