McWilliam v Penthouse Publications Ltd

McWilliam (the appellant) brought proceedings against Penthouse Publications Ltd (the respondent) alleging, among other things, conspiracy to injure by unlawful means. The dispute arose from the respondent's actions in terminating a contract with a company known as ND, which the appellant claimed was done in furtherance of a conspiracy to injure him. The appellant contended that the respondent, through its solicitor, had procured the termination of the contract by ND, and that this termination was achieved by unlawful means, specifically by alleging a breach or repudiation of the contract and subsequently varying it. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the respondent had engaged in a conspiracy to injure the appellant by unlawful means, and whether the appellant had the standing to sue for wrongs that were primarily done to the company ND. This involved considering whether the alleged actions of the respondent constituted unlawful means for the purpose of the tort of conspiracy, and whether the appellant, as a shareholder or otherwise, had a sufficient interest to bring such a claim when the direct harm was to the company. The court also had to consider the application of the doctrine of promissory estoppel in the context of the alleged variation of the contract.

The Court of Appeal dismissed the appeal. The court found that the appellant lacked standing to sue for wrongs done primarily to the company ND, as the alleged conspiracy and unlawful means were directed at the company, not the appellant personally. The court also held that the appellant had not established the elements of the tort of conspiracy to injure by unlawful means. Furthermore, the court found that the appellant's arguments regarding promissory estoppel were not made out on the facts.

The appeal was dismissed with costs.