Oaktwig Pty Limited v WILLIAMS

Oaktwig Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute over a contractual success fee. The appellant, Oaktwig, had entered into an agreement with the respondent, Mr Williams, under which a success fee was payable upon the occurrence of a defined event. The primary judge had found that the success fee was not payable in the circumstances that had arisen.

The central legal issue before the Court of Appeal was whether the primary judge had erred in law in finding that the success fee was not payable. Specifically, the court considered whether there was an implied term in the contract that the success fee would be payable upon an event other than the one expressly defined in the agreement. The appellant sought to argue on appeal that the fee should be payable on this alternative event.

The Court of Appeal held that the appellant was not entitled to revive a claim on appeal that it had disclaimed at trial. The court reasoned that if the appellant had intended to pursue the claim based on the alternative event, it should have done so at the trial, where evidence could have been led to address that specific claim. The court found no basis for implying a term into the contract that would render the success fee payable on the event now sought to be relied upon by the appellant.

Consequently, leave to appeal was refused, and the summons was dismissed with costs.