Harpur & Ors v Ariadne Aust Ltd - [1996] QCA 483

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No. 19 of 1995

Brisbane

BeforeFitzgerald P.
Davies J.A.
Thomas J.

[Harpur & ors. v. Ariadne Aust. Ltd. & ors.]

BETWEEN:

PAUL HENRY HARPUR
(First Plaintiff) First Appellant

AND:

ARLAW HOLDINGS PTY LTD
(Second Plaintiff) Second Appellant

AND:

HIGH TECH EXPORTS PTY LTD
(Third Plaintiff) Third Appellant

AND:

ARIADNE AUSTRALIA LIMITED
(First Defendant) First Respondent

AND:

N.Z.I. CORPORATION LTD
(Second Defendant) Second Respondent

AND:

DAVID JOHN HARTLEY
(Third Defendant) Third Respondent

AND:

SOLUTION 6 PROFESSIONAL OFFICE SYSTEMS
PTY LTD
(Sixth Defendant) Fourth Respondent

Judgment delivered 29 November 1996

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS: BREACH OF CONTRACT AND WRONGFUL INTERFERENCE WITH CONTRACTUAL RIGHTS - claim for damages - whether an immediately legally binding contract was reached - complex corporate transaction - lengthy trial - action tried and decided in 1994, the material events occurring in 1982 - “human memories ... taxed beyond acceptable limits” - consideration of conduct preceding and subsequent to the entering of the agreement and the nature of the transaction - agreement subject to the execution of a formal contract satisfactory to each parties’ solicitors - handshakes exchanged - announcement to the Stock Exchange etc.

BREACH OF DUTY OF CONFIDENCE - claims for account and/or equitable damages arising out of alleged use of confidential information.

Counsel:Mr D. Fraser Q.C., with him Mr J. McKenna for the appellants.
Mr J. Muir Q.C., with him Mr L.E. Kelly for the respondents.

Solicitors:Ebsworth & Ebsworth for the appellants.
Minter Ellison for the respondents.

Hearing Date: 1 December 1995

REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 29 November 1996

On 16 December 1994, a Judge of the Trial Division dismissed an action brought by the appellants and others against the respondents and others. The lengthy trial had been concerned only with issues of liability, and if this appeal were to succeed it is common ground that it would be necessary for the material claims to be returned to the Trial Division to determine what, if any, relief should be granted. The appellants, Paul Henry Harpur, Arlaw Holdings Pty Ltd and High Tech Exports Pty Ltd, were not the only plaintiffs in the action, nor the respondents the only defendants; claims by other plaintiffs and against other defendants which were dismissed, and some of the appellants’ unsuccessful claims against the respondents are no longer pursued. Further, not all the appellants and all the respondents are interested in all the issues on appeal, which is primarily concerned with the first appellant’s claims for damages for:

breach of contract against the respondents Ariadne Australia Limited and NZI Corporation Ltd; and
wrongful interference with contractual rights against NZI and Solution 6 Professional Office Systems Pty Ltd.
There is also a claim for an account and/or equitable damages in respect of an alleged breach of confidence which, according to the notice of appeal, is pursued by…

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: [1996] QCA 483
Decision Date: 29 November 1996

CaseChat Overview and Summary

In Harpur & Ors v Ariadne Aust Ltd, the appellants, Paul Henry Harpur, Arlaw Holdings Pty Ltd, and High Tech Exports Pty Ltd, appealed against the trial judge's dismissal of their action against the respondents, Ariadne Australia Limited, N.Z.I. Corporation Ltd, David John Hartley, and Solution 6 Professional Office Systems Pty Ltd. The appeal was primarily concerned with the first appellant's claims for damages for breach of contract and wrongful interference with contractual rights. The appellants alleged that an agreement was reached on 8 November 1982, which was repudiated by the respondents on or about 19 November 1982. The respondents denied that any binding agreement was reached on 8 November 1982, and alternatively contended that the agreement was void for uncertainty, performance of the agreement was impossible, the agreement was illegal, the agreement was subject to conditions which were not fulfilled, the agreement was repudiated by the appellants, and the agreement was induced by misrepresentations made by Harpur and the respondents rescinded on that ground.

The trial judge found that the appellants' evidence was not credible and dismissed the action. The Court of Appeal, in a unanimous decision, dismissed the appeal with costs to be taxed. The Court found that the evidence did not support the appellants' contention that a binding contract was made on 8 November 1982. The complexity of the transaction, the summary nature of the draft heads of agreement, the absence of a number of persons or entities that would be significantly affected by such an agreement, the inclusion of additional parties and terms in the drafts prepared over the ensuing weeks, the difficulty of converting the "draft heads of agreement" into the agreement that is pleaded or argued upon the appeal, the problem created by the fact that the draft heads of agreement did not apparently contemplate NZI as a contracting party, the absence of evidence or finding that NZI made a collateral agreement with Mr Harpur to lend to Ariadne whatever money was needed to enable a loan of $3.6 million to be made to HCA, the associated difficulty that if the contract was to be conditional upon such finance being granted, no such condition was mentioned or pleaded, and the express provision for the preparing and signing of formal documentation, all pointed to the conclusion that no concluded agreement was made between the parties on 8 November 1982. The Court also found that the agreement (if made) was void for uncertainty and was induced by misrepresentations made by Harpur, and duly rescinded on that ground by the respondents.

Orders