Garrick Hawkins v Tom Oates - [2009] NSWDC 258

CITATION: Garrick Hawkins v Tom Oates [2009] NSWDC 258

HEARING DATE(S): 14/9/09 - 17/9/09 and 2/10/09

JUDGMENT DATE:
2 October 2009

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

CATCHWORDS: Agreement between parties to share in costs of litigation - Formation of Contract - Consideration of new terms in ongoing relationship - Relevance of subsequent conduct to formation of contract - Payouts made by mistake - Change of position

LEGISLATION CITED: Civil Procedure Act 2005

CASES CITED: Integrated Computer Services Pty Limited v Digital Equipment Corp (Aust) Pty Limited (1988) 5BPR [97326] at 11,117-11,178
Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 at 176.7
Ormwave v Smith (2007) NSWCA 210
Pagnan S.p.A v Feed Products Ltd (1987) 2 Lloyds Rep 601 at 611
FAI Traders Insurance Co Limited v Savoy Plaza Pty Limited (1993) 2 VR 343
Howard Smith & Co Limited v Varawa (1907) 5 CLR 68 at 77
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSW LR 523 at 535
Sullivan v Constable (1932) 48 TLR 369 at 370
Jones v Dunkel (1959) 101 CLR 298
Manly Council v Byrne and Anor (2004) NSWCA 123
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Ryledar Pty Ltd v Euphoric (2007) 69 NSW LR 603 at 645
MK & JA Roche Pty Ltd v Metro Edgley (2005) NSW CA 39 at [72]
Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR at 337
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20

TEXTS CITED: Chitty on Contracts 28th ed (1999) London, Sweet & Maxwell, Vol 1 at 102 [2-027]

PARTIES: Garrick Hawkins (1st Plaintiff)
Pegela Pty Limited (2nd Plaintiff)
Tom Oates (1st Defendant)
Paul Oates (2nd Defendant)

FILE NUMBER(S): 5539/07

COUNSEL: M L Williams SC with I Griscti (1st & 2nd Plaintiffs)
A W Street SC with J Hewitt (1st & 2nd Defendants)

JUDGMENT

1 These proceedings arise out of arrangements made between Garrick Hawkins (“Hawkins”), Pegela Pty Limited (“Pegela”) and Scott Francis Tyne (“Tyne”) on the one part and Tom Oates (“Oates”) and Paul Oates (“Oates’ brother”) on the other, concerning the sharing of legal costs incurred in proceedings commenced in the Supreme Court of Victoria in which The National Mutual Life Association of Australasia Limited (“AXA”) was the defendant.

2 AXA issued certain policies described in the evidence as “Prosperity Bond Policies”. These Policies were promoted by one Dr Peter Keller in the late 1990s. At that time, Tyne and Hawkins were directors of Matrix Group Limited (“Matrix”), an investment bank based in Sydney.

3 After receiving promotional material from Keller, Tyne and Hawkins decided to invest in some of the Policies. Tyne also spoke to Oates about investing in the Policies. At the time, Oates was an associate director at Matrix. Oates in turn discussed the matter with his brother.

4 During 2000, Tyne acquired a policy from AXA which was issued to his family company…

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.

Keep reading for free

Create a free CaseChat account to read Garrick Hawkins v Tom Oates and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWDC 258
Decision Date: 2 October 2009

CaseChat Overview and Summary

The case of Garrick Hawkins v Tom Oates involved a dispute between the parties over an agreement to share the costs of litigation. The matter was heard by the Supreme Court of New South Wales, where the key issue was whether a valid contract had been formed between the parties to share in the costs of the litigation. The court was required to consider the circumstances in which the alleged agreement was made and whether the terms of the agreement were supported by consideration. The court also had to determine whether subsequent conduct by the parties was relevant to the formation of the contract.

The court found that there was no evidence of a binding agreement to share the costs of litigation between the parties. While there were discussions between the parties, there was no clear expression of an intention to create a legally binding contract, nor was there evidence of any consideration provided by either party. The court also found that the subsequent conduct of the parties, including the payment of certain costs by one party, did not amount to an acceptance of liability under the alleged agreement. The court held that the subsequent conduct was not relevant to the formation of the contract and that the payments made by mistake could not be recovered.

The court further found that the party who had made the payments could not recover the amount paid as there had been a change of position due to the reliance on the mistaken payments. The court held that the party who had made the payments could not recover the amount paid as there had been a change of position due to the reliance on the mistaken payments. The court held that the party who had made the payments could not recover the amount paid as there had been a change of position due to the reliance on the mistaken payments.

The court dismissed the claim and ordered that the party who had made the payments was not entitled to recover the amount paid. The court further found that there was no valid contract between the parties to share in the costs of litigation and that the party who had made the payments could not recover the amount paid as there had been a change of position due to the reliance on the mistaken payments.

Orders