McIntosh v Linke Nominees Pty Ltd - [2008] QCA 275

SUPREME COURT OF QUEENSLAND

CITATION:

McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 275

PARTIES:

LACHLAN MCINTOSH AND JOHN PARK as trustees
of the Estate of GARY STIRLING CAMM

(A BANKRUPT)
(plaintiff/respondents)
v
LINKE NOMINEES PTY LTD ACN 005 860 944
(first defendant/not a party to the appeal)
ROBERT CLIVE LINKE
(second defendant/appellant)

FILE NO/S:

Appeal No 4043 of 2008
Appeal No 4629 of 2008
SC No 4537 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2008

JUDGES:

Muir JA, Cullinane and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

(a)the appeals be allowed;

(b)the orders made on 7 and 22 April 2008 be set aside; and

(c)the respondents pay the appellants' costs of the proceedings, including reserved costs, if any, and the costs of the appeal

CATCHWORDS:

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN AGENT AND THIRD PERSONS – LIABILITIES OF AGENT – IN RESPECT OF CONTRACTS – LIABILITY FOR BREACH OF WARRANTY OF AUTHORITY – where the appellant was the director of the company, Linke Nominees Pty Ltd – where a deed was negotiated between the respondents and the appellant by which the respondents agreed to give up their rights to bring proceedings against the company in relation to a parcel of land in exchange for the payment of a settlement sum – where the respondents were successful in obtaining judgment against the appellant for $500,000 together with interest for breach of warranty of authority – where the respondents’ rights to bring proceedings against the company remain intact – where the respondents’ remedies in relation to the land were not brought into account in the assessment of damages – whether there was sufficient evidence before the court to allow the court to make an assessment of damages in regards to the respondents’ prospects of success and the value of the land

GUARANTEE AND INDEMNITY – INDEMNITIES – CONSTRUCTION OF CONTRACT – where the deed provided that the appellant agrees to hold the respondents harmless against failure by the company to pay the “settlement sum or any part thereof” – where the settlement sum was defined as the “sum equal to 50 per cent of the value of the property as determined by the registered valuer” – where the settlement sum was not determined – where the company was not a party to the deed – whether the obligation of the appellant depended upon the existence of the obligation on the part of the company to pay the settlement sum

British Russian Gazette and Trade Outlook Ltd v Associated Newspapers [1933] 2 KB 616, cited
Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1, considered
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

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: [2008] QCA 275
Decision Date: 12 September 2008

CaseChat Overview and Summary

McIntosh v Linke Nominees Pty Ltd involved a dispute between the appellant, who was the director of the company Linke Nominees Pty Ltd, and the respondents. The central issue was whether the appellant was liable for breach of warranty of authority and the appropriate assessment of damages. The respondents had agreed to relinquish their rights to bring proceedings against the company in exchange for a settlement sum, which was to be 50% of the property's value. They subsequently sued the appellant for $500,000 plus interest due to a breach of the warranty of authority. The respondents' rights against the company remained unaddressed, and the land's value was not considered in the damages assessment.

The legal issues encompassed the liability of the agent for breach of warranty of authority and the proper calculation of damages. The court needed to determine if the appellant's liability was correctly assessed and whether the respondents' remedies in relation to the land should have been considered. Additionally, the court examined whether the appellant's obligations under the deed were contingent on the company's duty to pay the settlement sum, given that the company was not a party to the deed.

The court found that the respondents' rights against the company should have been considered in the damages assessment. It also ruled that the respondents' prospects of success and the land's value were not adequately accounted for. Regarding the deed, the court concluded that the appellant's obligations were not contingent upon the company's duty to pay the settlement sum, as the company was not a party to the deed. Consequently, the court allowed the appeals, set aside the previous orders, and ordered the respondents to pay the appellant's costs.

Orders

Orders of the court

(a)the appeals be allowed;

(b)the orders made on 7 and 22 April 2008 be set aside; and

(c)the respondents pay the appellants' costs of the proceedings, including reserved costs, if any, and the costs of the appeal

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:	McIntosh & Anor as T’ees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L & Anor [2008] QCA 275
PARTIES:	LACHLAN MCINTOSH AND JOHN PARK as trustees of the Estate of GARY STIRLING CAMM (A BANKRUPT) (plaintiff/respondents) v LINKE NOMINEES PTY LTD ACN 005 860 944 (first defendant/not a party to the appeal) ROBERT CLIVE LINKE (second defendant/appellant)
FILE NO/S:	Appeal No 4043 of 2008 Appeal No 4629 of 2008 SC No 4537 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2008
JUDGES:	Muir JA, Cullinane and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	(a)the appeals be allowed; (b)the orders made on 7 and 22 April 2008 be set aside; and (c)the respondents pay the appellants' costs of the proceedings, including reserved costs, if any, and the costs of the appeal
CATCHWORDS:	CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN AGENT AND THIRD PERSONS – LIABILITIES OF AGENT – IN RESPECT OF CONTRACTS – LIABILITY FOR BREACH OF WARRANTY OF AUTHORITY – where the appellant was the director of the company, Linke Nominees Pty Ltd – where a deed was negotiated between the respondents and the appellant by which the respondents agreed to give up their rights to bring proceedings against the company in relation to a parcel of land in exchange for the payment of a settlement sum – where the respondents were successful in obtaining judgment against the appellant for $500,000 together with interest for breach of warranty of authority – where the respondents’ rights to bring proceedings against the company remain intact – where the respondents’ remedies in relation to the land were not brought into account in the assessment of damages – whether there was sufficient evidence before the court to allow the court to make an assessment of damages in regards to the respondents’ prospects of success and the value of the land GUARANTEE AND INDEMNITY – INDEMNITIES – CONSTRUCTION OF CONTRACT – where the deed provided that the appellant agrees to hold the respondents harmless against failure by the company to pay the “settlement sum or any part thereof” – where the settlement sum was defined as the “sum equal to 50 per cent of the value of the property as determined by the registered valuer” – where the settlement sum was not determined – where the company was not a party to the deed – whether the obligation of the appellant depended upon the existence of the obligation on the part of the company to pay the settlement sum British Russian Gazette and Trade Outlook Ltd v Associated Newspapers [1933] 2 KB 616, cited Citicorp Australia Ltd v Hendry (1985) 4 NSWLR 1, considered Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54