Global Alliance Network Pty Ltd v Sensis Pty Ltd - [2007] NSWCA 163

New South Wales

Court of Appeal

CITATION: Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 June 2007

JUDGMENT DATE:
27 July 2007

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Tobias JA at 18

DECISION: (a) Appeal allowed with respect to Orders 1, 2, 3 and 5 made by her Honour Judge S J Gibb on 29 September 2006 and dismissed with respect to Order 4; (b) The appellant to pay the respondent the sum of $20,513.90 such judgment to take effect as at 29 September 2006; (c) The appellant to pay the respondent’s costs both in the District Court and on the appeal with respect to its cross-claim; (d) The respondent to pay the appellant’s costs of the respondent’s claim in the District Court and of the appeal with respect thereto but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified; (e) Liberty to apply in the first instance to Tobias JA for any variation of orders (c) and (d) above strictly within 14 days of the date hereof if they are affected by any relevant Calderbank offer

CATCHWORDS: CONTRACTS – Oral variation of standard form contracts for advertising – Written contract defines silence as acceptance of provided advertising proofs – Oral agreement on condition precedent to wait for “go ahead” – No agreement as to nature of “go ahead” to be given – Whether the statement “will confirm others later” when accepting one set of advertising proofs constitutes “go ahead” for “other” sets of advertising proofs – Whether silence after advertising proofs received constitutes “go ahead” – EVIDENCE – Whether admissions in a defence to a cross-claim can operate as informal admissions once the defence is superseded without objection by the filing of an amended defence

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Buckmaster v Meiklejohn (1853) 155 ER 1506
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Warren v Coombes (1979) 142 CLR 531

PARTIES: Global Alliance Network Pty Ltd
Sensis Pty Ltd

FILE NUMBER(S): CA 40693/06

COUNSEL: A: M Luitingh
R: J Turnbull

SOLICITORS: A: Swaab Attorneys, Sydney
R: Holman Webb, Sydney

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4546/03

LOWER COURT JUDICIAL OFFICER: Gibb DCJ

LOWER COURT DATE OF DECISION: 29 September 2006

CA 40693/06
DC 4546/03

MASON P
HODGSON JA
TOBIAS JA
Friday 27 July 2007

GLOBAL ALLIANCE NETWORK PTY LTD v SENSIS PTY LTD

Judgment

1 MASON P: I agree with Tobias JA.

2 HODGSON JA: The circumstances giving rise to this appeal, the issues it involves, and the submissions of the parties are set out in the judgment of Tobias JA.

3 On the question whether the primary judge erred in finding…

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: [2007] NSWCA 163
Decision Date: 27 July 2007

CaseChat Overview and Summary

The New South Wales Court of Appeal considered a dispute between Global Alliance Network Pty Ltd (appellant) and Sensis Pty Ltd (respondent) concerning oral variations to standard form advertising contracts. The core of the disagreement revolved around whether certain communications constituted acceptance of advertising proofs and, consequently, a binding agreement for advertising services.

The court was tasked with determining whether an oral agreement, which stipulated a condition precedent of receiving a "go ahead" before advertising proofs were accepted, had been met. Specifically, the court had to decide if the statement "will confirm others later" made upon accepting one set of proofs amounted to a "go ahead" for other outstanding proofs, and whether silence after receiving further proofs could be construed as acceptance. Additionally, the court examined whether admissions made in an initial defence to a cross-claim could be relied upon as informal admissions even after an amended defence was filed without objection.

The Court of Appeal found that the statement "will confirm others later" did not constitute a "go ahead" for the remaining advertising proofs, as there was no agreement on the nature of the "go ahead" required. Similarly, silence after receiving proofs was not deemed sufficient to establish acceptance in the absence of a clear agreement to that effect. The court also held that admissions in a superseded defence could operate as informal admissions.

Consequently, the appeal was allowed in part, with the court setting aside certain orders made by the District Court and ordering the appellant to pay the respondent a specific sum. The court also made detailed orders regarding the costs of both the District Court proceedings and the appeal, including provisions for a certificate under the Suitor's Fund Act and liberty to apply for variations based on Calderbank offers.

Orders

Orders of the court

(a) Appeal allowed with respect to Orders 1, 2, 3 and 5 made by her Honour Judge S J Gibb on 29 September 2006 and dismissed with respect to Order 4;

(b) The appellant to pay the respondent the sum of $20,513.90 such judgment to take effect as at 29 September 2006;

(c) The appellant to pay the respondent's costs both in the District Court and on the appeal with respect to its cross-claim;

(d) The respondent to pay the appellant's costs of the respondent's claim in the District Court and of the appeal with respect thereto but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified;

(e) Liberty to apply in the first instance to Tobias JA for any variation of orders (c) and (d) above strictly within 14 days of the date hereof if they are affected by any relevant Calderbank offer

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Global Alliance Network Pty Ltd v Sensis Pty Ltd [2007] NSWCA 163 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 June 2007
JUDGMENT DATE:	27 July 2007
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Tobias JA at 18
DECISION:	(a) Appeal allowed with respect to Orders 1, 2, 3 and 5 made by her Honour Judge S J Gibb on 29 September 2006 and dismissed with respect to Order 4; (b) The appellant to pay the respondent the sum of $20,513.90 such judgment to take effect as at 29 September 2006; (c) The appellant to pay the respondent’s costs both in the District Court and on the appeal with respect to its cross-claim; (d) The respondent to pay the appellant’s costs of the respondent’s claim in the District Court and of the appeal with respect thereto but to have with respect to the latter a certificate under the Suitor’s Fund Act 1951, if otherwise qualified; (e) Liberty to apply in the first instance to Tobias JA for any variation of orders (c) and (d) above strictly within 14 days of the date hereof if they are affected by any relevant Calderbank offer
CATCHWORDS:	CONTRACTS – Oral variation of standard form contracts for advertising – Written contract defines silence as acceptance of provided advertising proofs – Oral agreement on condition precedent to wait for “go ahead” – No agreement as to nature of “go ahead” to be given – Whether the statement “will confirm others later” when accepting one set of advertising proofs constitutes “go ahead” for “other” sets of advertising proofs – Whether silence after advertising proofs received constitutes “go ahead” – EVIDENCE – Whether admissions in a defence to a cross-claim can operate as informal admissions once the defence is superseded without objection by the filing of an amended defence
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
CASES CITED:	Buckmaster v Meiklejohn (1853) 155 ER 1506 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jones v Dunkel (1959) 101 CLR 298 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Warren v Coombes (1979) 142 CLR 531
PARTIES:	Global Alliance Network Pty Ltd Sensis Pty Ltd
FILE NUMBER(S):	CA 40693/06
COUNSEL:	A: M Luitingh R: J Turnbull
SOLICITORS:	A: Swaab Attorneys, Sydney R: Holman Webb, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 4546/03
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ
LOWER COURT DATE OF DECISION:	29 September 2006