Nuttall v S4U Pty Ltd - [2010] QSC 191

SUPREME COURT OF QUEENSLAND

CITATION:

Nuttall & Ors v S4U Pty Ltd & Ors [2010] QSC 191

PARTIES:

SIMON STEPHEN JAMES NUTTALL
(first applicant)

WEALTH ADVISOR BUSINESS STRATEGIES PTY LTD ACN 120 974 843 ATF THE WEALTH ADVISOR BUSINESS STRATEGIES TRUST
(second applicant)

NUTTALL SUPERANNUATION CO PTY LTD ACN 105 202 659 ATF THE NUTTALL FAMILY SUPER FUND ACN 067 982 889
(third applicant)
v
S4U PTY LTD ACN 126 975 835 ATF THE S4U UNIT TRUST
(first respondent)

STRATEGIES 4U PTY LTD ACN 126 97 844 ATF THE STRATEGIES 4U UNIT TRUST
(second respondent)

S4U PROPERTY PTY LTD ACN 128 816 437 ATF THE JAMES STREET UNIT TRUST
(third respondent)

STRATEGIES 4 PTY LTD ACN 126 97 844 ATF THE S4U PROPERTY UNIT TRUST
(fourth respondent)

STRATEGIES 4 WEALTH PTY LTD ACN 135 024 412 ATF THE STRATEGIES 4 WEALTH UNTIT TRUST
(fifth respondent)

STRATEGIES 4 AUDITS PTY LTD ACN 137 061 306 ATF THE STRATEGIES 4 AUDITS UNIT TRUST
(sixth respondent)

MURRAY WALTER SEYMOUR
(seventh respondent)

ABS ACCOUNTING & SECRETARIAL SERVICES PTY LTD ACN 010 362 606 ATF M & K TRUST
(eight respondent)

JAMES NORBURY
(ninth respondent)

JANORCOM PTY LTD ACN 010 362 606 ATF THE JANOR NO 2 TRUST
(tenth respondent)

MATTHEW GLEN TUTON
(eleventh respondent)

MPMSTRATEGY PTY LTD ACN 135 241 502 ATF THE MPMSTRATEGY UNIT TRUST
(twelfth respondent)

FILE NO/S:

SC No 12348 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2010

JUDGE:

Chief Justice

ORDERS:

1. The application is dismissed.

2. Costs of and incidental to the application are reserved.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where applicants seek various declarations in relation to a contract bearing on the valuation of a business’ goodwill – where the valuation of a share of the business’ goodwill has been committed to a valuer as an independent expert – where the instant application was provoked by the expert valuer’s request that the parties resolve aspects of construction of the contract – whether the applicants’ or respondents’ construction of the contract should be preferred – whether the Court should intervene to direct the valuer as to how to undertake his task

Fisons Pty Ltd v Rostinga Pty Ltd (Supreme Court of New South Wales, 3513/1988, 2 August 1989), considered
Ross Cook and Brett Cook Pty Ltd v Australian Sugar Cane Feeds Pty Ltd [2009] QSC 178, applied
Wickham Properties Pty Ltd v Astor Motel Pty Ltd [1994] 1 Qd R 211, cited

COUNSEL:

Dr S Monks for the applicants
P D Tucker for the respondents

SOLICITORS:

Brennans Solicitors for the applicants
Results Legal Solutions for the respondents

Introduction

CHIEF JUSTICE: The applicants seek declarations bearing on the calculation of an amount owing to Mr Nuttall for his share of the accounting, taxation, financial planning, investment and real estate venture from which he “departed” in 2009. The valuation of that…

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: [2010] QSC 191
Decision Date: 8 June 2010

CaseChat Overview and Summary

Nuttall v S4U Pty Ltd involved a dispute between the applicants and the respondents concerning the interpretation of a contract regarding the valuation of a business' goodwill. The applicants sought various declarations to clarify the terms of the contract, which had been referred to an independent expert valuer for resolution. The case was heard in the Supreme Court of Queensland, where the primary issue was determining whether the applicants' or respondents' interpretation of the contract should prevail and whether the court should intervene to direct the valuer on how to proceed with the valuation.

The court examined the language of the contract and the context in which it was made to ascertain the parties' intentions. The applicants argued that their interpretation of the contract should be adopted, while the respondents contended that their construction was more accurate. The court considered the nature of the contract, which had been drafted with a view to having an independent expert valuer determine the valuation of a share of the business' goodwill. The court held that it was not appropriate to intervene and direct the valuer, as the task of interpreting the contract was best left to the expert valuer, given their specialised knowledge and expertise.

The court dismissed the applicants' application, finding that the respondents' interpretation of the contract was more consistent with the language and purpose of the agreement. The court held that it would not substitute its own interpretation for that of the expert valuer, as the contract had been specifically designed to allow for such expertise. The court also found that it was not necessary to direct the valuer on how to undertake their task, as the valuer was best placed to determine the appropriate approach to take in light of the contract's terms and the parties' intentions. The application was dismissed, and costs were reserved.

Orders

Orders of the court

1. The application is dismissed.

2. Costs of and incidental to the application are reserved.

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:	Nuttall & Ors v S4U Pty Ltd & Ors [2010] QSC 191
PARTIES:	SIMON STEPHEN JAMES NUTTALL (first applicant) WEALTH ADVISOR BUSINESS STRATEGIES PTY LTD ACN 120 974 843 ATF THE WEALTH ADVISOR BUSINESS STRATEGIES TRUST (second applicant) NUTTALL SUPERANNUATION CO PTY LTD ACN 105 202 659 ATF THE NUTTALL FAMILY SUPER FUND ACN 067 982 889 (third applicant) v S4U PTY LTD ACN 126 975 835 ATF THE S4U UNIT TRUST (first respondent) STRATEGIES 4U PTY LTD ACN 126 97 844 ATF THE STRATEGIES 4U UNIT TRUST (second respondent) S4U PROPERTY PTY LTD ACN 128 816 437 ATF THE JAMES STREET UNIT TRUST (third respondent) STRATEGIES 4 PTY LTD ACN 126 97 844 ATF THE S4U PROPERTY UNIT TRUST (fourth respondent) STRATEGIES 4 WEALTH PTY LTD ACN 135 024 412 ATF THE STRATEGIES 4 WEALTH UNTIT TRUST (fifth respondent) STRATEGIES 4 AUDITS PTY LTD ACN 137 061 306 ATF THE STRATEGIES 4 AUDITS UNIT TRUST (sixth respondent) MURRAY WALTER SEYMOUR (seventh respondent) ABS ACCOUNTING & SECRETARIAL SERVICES PTY LTD ACN 010 362 606 ATF M & K TRUST (eight respondent) JAMES NORBURY (ninth respondent) JANORCOM PTY LTD ACN 010 362 606 ATF THE JANOR NO 2 TRUST (tenth respondent) MATTHEW GLEN TUTON (eleventh respondent) MPMSTRATEGY PTY LTD ACN 135 241 502 ATF THE MPMSTRATEGY UNIT TRUST (twelfth respondent)
FILE NO/S:	SC No 12348 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	20 May 2010
JUDGE:	Chief Justice
ORDERS:	1. The application is dismissed. 2. Costs of and incidental to the application are reserved.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where applicants seek various declarations in relation to a contract bearing on the valuation of a business’ goodwill – where the valuation of a share of the business’ goodwill has been committed to a valuer as an independent expert – where the instant application was provoked by the expert valuer’s request that the parties resolve aspects of construction of the contract – whether the applicants’ or respondents’ construction of the contract should be preferred – whether the Court should intervene to direct the valuer as to how to undertake his task Fisons Pty Ltd v Rostinga Pty Ltd (Supreme Court of New South Wales, 3513/1988, 2 August 1989), considered Ross Cook and Brett Cook Pty Ltd v Australian Sugar Cane Feeds Pty Ltd [2009] QSC 178, applied Wickham Properties Pty Ltd v Astor Motel Pty Ltd [1994] 1 Qd R 211, cited
COUNSEL:	Dr S Monks for the applicants P D Tucker for the respondents
SOLICITORS:	Brennans Solicitors for the applicants Results Legal Solutions for the respondents