L. N. E. Cunneen and Co Pty Ltd v Blackburn

The appeal concerned an informal agreement between L. N. E. Cunneen and Co Pty Ltd (the appellant) and Blackburn (the respondents) for the appellant to be remunerated for accounting services by a 10% share in the profits of the respondents' businesses. The central dispute was whether this agreement was subsequently varied to include an additional remuneration of a 10% share in the capital growth of the assets of those businesses. The matter came before the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge erred in certain findings of fact. Crucially, the court had to consider whether, despite the absence of a clear offer and acceptance regarding the capital growth component, the parties had varied their informal agreement by their conduct to incorporate such a term. Additionally, the court considered whether the primary judge erred in ordering the respondents to pay the costs of a cross-claim under the Contracts Review Act 1980 (NSW), which had been dismissed because the relevant contract was not made out, without its merits having been finally determined.

The Court of Appeal found that the primary judge had not erred in their findings of fact. The court reasoned that the conduct of the parties, particularly their actions and communications over time, demonstrated a clear intention to vary the original agreement to include a share in capital growth. This variation was established through their conduct, even in the absence of a formal, express agreement on that specific term. The court also found no error in the primary judge's costs order concerning the cross-claim, as the dismissal was based on the fundamental failure to establish the existence of the contract itself.

Consequently, the appeal was dismissed with costs, and the cross-appeal was also dismissed with costs.