O'Doherty v T G Eakin Ltd

CITATION:	O'Doherty v T G Eakin Ltd & Anor [2004] NSWCA 38
HEARING DATE(S):	15/12/03
JUDGMENT DATE:	3 March 2004
JUDGMENT OF:	Mason P at 1; McColl JA at 2; Cripps AJA at 3
DECISION:	Appeal and cross appeal dismissed.; Order of Certoma DCJ affirmed.; Appellant to pay respondent's costs of appeal.
CATCHWORDS:	Contract - "Entire contract" - Construction - Damages - Whether settlement with third party should be taken into account (ND)
CASES CITED:	Franklins Self Service Pty Ltd v Wyber 48 NSWLR 249 at 254
PARTIES :	APPELLANT Kevin Patrick O'Doherty RESPONDENTS T G Eakin Ltd and Tom Eakin
FILE NUMBER(S):	CA 40147/03
COUNSEL:	Appellant: G J McVay Respondent: J C Kelly SC
SOLICITORS:	Appellant: Steingold Abel Lawyers Respondent: Gadens Lawyers

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	9737/97
LOWER COURT JUDICIAL OFFICER :	Certoma DCJ

CA 40147/03

MASON P
McCOLL JA
CRIPPS AJA

Wednesday 3 March 2004

O’DOHERTY v T G EAKIN LTD & ANOR

Judgment

1 MASON P: I agree with Cripps AJA.

2 McCOLL JA: I agree with Cripps AJA.

3 CRIPPS AJA: This is an appeal from a decision of his Honour Judge Certoma DCJ published on 10 February 2003 in proceedings between the appellant Kevin Patrick O’Doherty and the respondent T G Eakin Ltd.

4 The litigation is concerned with an agency agreement entered into in 1991 between the appellant in Australia and the respondent in Northern Ireland for the promotion and sale of surgical products manufactured in Northern Ireland and sold in Australia and, as well, with an agreement terminating the agency.

5 As will be seen, the appellant in breach of his obligations under the agency agreement, misappropriated money belonging to the respondent by paying cheques made payable to the respondent (or which should have been made payable to it) into his own personal account.

6 The agency was terminated in early February in 1997 and on 9 February 1997 the parties entered into a termination agreement the details of which will be referred to later.

7 In 1997 the appellant commenced proceedings against the respondent for what were claimed to be breaches by the respondent of its obligations under the agency agreement and the termination agreement.

8 The respondent denied the appellant’s entitlement to any damages arising under the agreements and, by a cross-claim, sought damages for alleged breaches of the agency agreement and termination agreement.

9 The learned trial judge dismissed the appellant’s claim and found for the respondent in the sum of $144,340.81 being the amount the appellant agreed he owed the respondent by operation of the agency agreement and the termination agreement.

10 The respondent also cross-claimed against the National Bank of Australia Limited alleging that in breach of its duty to the respondent it credited to the plaintiff’s account the proceeds of cheques drawn in favour of the respondent. The Bank, in turn, cross-claimed against the appellant claiming that if it were liable to the respondent any liability so found should be met by the…