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Expectation Pty Ltd v Pinnacle VRB Ltd

Expectation Pty Ltd v Pinnacle VRB Ltd

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Case Copied 11 June 2001 74 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: EXPECTATION PTY LTD -v- PINNACLE VRB LTD [2001] WASC 144

CORAM: MURRAY J

HEARD: 15, 16, 19-23 FEBRUARY, 2-4, 7 & 9 MAY 2001

DELIVERED : 11 JUNE 2001

FILE NO/S: CIV 2463 of 2000

BETWEEN: EXPECTATION PTY LTD (ACN 009 030 102)
Plaintiff
AND
PINNACLE VRB LTD (ACN 060 111 784)
Defendant

Catchwords:

Contract - Contingent condition for performance - Whether failure constitutes breach of contract - Termination - Turns on own facts

Legislation:

Corporations Law s 128, s 129

Result:

Claim and counterclaim dismissed

Representation:

Counsel:

Plaintiff: Mr D M Stone
Defendant: Mr H Jolson QC, Mr G S Clarke & Mr J L Evans

Solicitors:

Plaintiff: Williams & Hughes
Defendant: Pasricha Partners

Case(s) referred to in judgment(s):

Gange v Sullivan (1966) 116 CLR 418
Gregory v MAB Pty Ltd (1989) 1 WAR 1
Masters v Cameron (1954) 91 CLR 353
Paltara Pty Ltd v Dempster (1991) 6 WAR 85
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191

Case(s) also cited:

Acorn Consolidated Pty Ltd v Hawkslate Investments (1999) 21 WAR 425
Alghussein Establishment v Eton College [1991] 1 All ER 267
Amber Holdings (Aust) Pty Ltd v Polonia Pty Ltd [1982] 2 NSWLR 420
Austotel Pty Ltd v Franklins Self Serve (1989) 16 NSWLR 582
Australian Broadcasting Commission v Australasian Performing Right Ass Ltd (1972-73) 129 CLR 99
Australian Growth Resources Corp Pty Ltd v Van Reesma (1988) 13 ACLR 261
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Baytrust Holdings Ltd v IRC [1971] 3 All ER 76
Bolton Partners v Lambert (1888) 41 Ch D 295
Boranga v Fintoff (1997) 19 WAR 1
Butt v McDonald (1896) 7 QLJ 62
Canning v Temby (1905) 3 CLR 419
Celthene Pty Ltd v WKJ Hauliers [1981] 1 NSWLR 606
Cheall v Association of Professional Executive Clerical & Computer Staff [1983] 2 AC 180
Citicorp NZ Inc v Power New Zealand Ltd (1997) 8 NZCLC 261
CLC Corporation v Cambridge Gulf Holdings NL (1997) 25 ACSR 296
Codelfa Construction v State Rail Authority of NSW (1982) 149 CLR 337
Commercial Union v Ferrcom (1991) 22 NSWLR 389
Commonwealth v Clark [1994] 2 VR 333
Crabtree Vickers P/L v Australian Direct Mail Advertising & Addressing Co P/L (1975) 133 CLR 72
El Ajou v Dollar Holdings PLC [1994] 2 All ER 682
Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50
Farrow Finance Co Limited (In Liq) v Farrow Properties Pty Ltd (In Liq) [1999] 1 VR 584
Foran & Anor v Wight & Anor (1989) 168 CLR 385
Freeman & Lockyer v Buckhurst Park Properties P/L [1964] 2 QB 480
G Scammell & Nephew Ltd v Ouston [1941] AC 251
Godecke v Kirwan (1973) 129 CLR 629
GR Securities Pty Ltd v Baulkham Hills…

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.

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Details

Case: [2001] WASC 144
Decision Date

CaseChat Overview and Summary

The case involved a dispute between Expectation Pty Ltd and Pinnacle VRB Ltd over the performance of a letter agreement. The court was required to decide whether the letter agreement was binding and whether either party breached the obligation to negotiate in good faith. The court found that the letter agreement was binding and that while both parties were responsible for the failure to achieve the agreements contemplated by the letter agreement, the defendant did not breach its obligation of good faith before 31 July 2000. As a result, the defendant could terminate the agreement, and the plaintiff's claim was dismissed. The court's reasoning was based on the terms of the letter agreement, the evidence of the parties' actions, and the surrounding circumstances, including the defendant's board being under siege by disaffected shareholders.

Orders