CONTRACT - breach - procuring breach ; CONTRACT - novation - by express words - by conduct ; CONTRACT - option to renew - construction of clause containing option - method of exercise; CONTRACT - breach - damages - future economic loss - allowance for degree of probability of future hypothetical events
[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
AGLC
Fightvision Pty Ltd v Onisforou [1999] NSWCA 323
Case
[1999] NSWCA 323
Decision Date
CaseChat Overview and Summary
Fightvision Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of Bainton J concerning alleged breaches of contract and procurement of breaches of contract. The dispute involved a boxing promoter, Fightvision, and several other parties, including boxers, managers, and broadcasting entities, relating to agreements for boxing matches.
The Court of Appeal was required to determine, among other issues, whether there had been a novation of contracts, the proper construction of an option to renew a contract, and whether certain parties had procured breaches of contract by others. The court also considered the principles for assessing damages for future economic loss, including the allowance for the probability of hypothetical future events.
The Court of Appeal found that the appeals against Mr Onisforou and Mr Fenech should be dismissed. However, the appeals against Mr Warton, Tszyu Enterprises, and Sky Channel were allowed. The court set aside the orders dismissing the claims against these respondents and the order that Fightvision pay their costs. Judgment was entered for Fightvision against Sky Channel for $7,310,445, with that order taking effect on 27 March 1998. A new trial was ordered for the proceedings against Mr Warton and Tszyu Enterprises, with directions regarding costs and the possibility of a certificate under the Suitors Fund Act 1951 for certain respondents.
Orders
Orders of the court
Appeal No. 40231/98; 1. Appeals against the respondents, Mr Onisforou and Mr Fenech, dismissed with costs; 2. Appeals against Mr Warton, Tszyu Enterprises and Sky Channel allowed; 3. Set aside the orders dismissing the claims against Mr Warton, Tszyu Enterprises and Sky Channel and the order that Fightvision pay the costs of those respondents; 4. Judgment for Fightvision against Sky Channel in the amount of $7,310,445 such order to take effect on 27 March 1998; 5. Sky Channel to pay Fightvision’s costs of its claim against Sky Channel before Bainton J and of its appeal against that part of his Honour’s order which dismissed the claim but, if qualified, to have a certificate under the Suitors Fund Act 1951 in respect of this appeal; 6. Order a new trial of the proceedings against Mr Warton and Tszyu Enterprises; 7. Mr Warton to pay Fightvision’s costs of the appeal between it and Mr Warton but, if qualified, to have a certificate under the Suitors Fund Act; 8. Tszyu Enterprises to pay Fightvision’s costs of the appeal between it and Tszyu Enterprises but, if qualified, to have a certificate under the Suitors Fund Act; 9. The costs of the first trial between Fightvision and Mr Warton and Tszyu Enterprises to be in the discretion of the judge hearing the new trial; 10. If Fightvision does not duly prosecute a new trial against Mr Warton, Mr Warton is to have liberty to apply to this Court to have his costs order against Fightvision reinstated; 11. If Fightvision does not duly prosecute a new trial against Tszyu Enterprises, Tszyu Enterprises is at liberty to apply to this Court to have its costs order against Fightvision reinstated; Appeal No. 40232/98; Appeal dismissed with costs