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Olward v Hall

Olward v Hall

Case [2023] WADC 46 21 April 2023

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   OLWARD -v- HALL [2023] WADC 46
CORAM:   STEVENSON DCJ
HEARD:   29 NOVEMBER 2022, 1 & 12-15 DECEMBER 2022, 7-10 FEBRUARY 2023 and WRITTEN SUBMISSIONS FILED 24 MARCH 2023
DELIVERED          :   21 APRIL 2023
FILE NO/S:   CIV 4318 of 2017
BETWEEN:   JODY DYLAN OLWARD
First Plaintiff
ANNABEL JEAN OLWARD
Second Plaintiff
AND
CONSTANCE HALL
Defendant

Catchwords:

Contract - Proper construction of contract - Heads of Agreement - Website designer to create, build, maintain, promote and monetise a website for the owner - Implied term - Whether owner obliged to provide 2 ‑ 3 posts of original content per week for the website - Proper construction of the agreement - Whether owner did not consent to launch of Queens Pages Directory - Whether implied term requiring owner to approve a date for the launch of the Directory on the website within a reasonable period after it was ready for use, and to promote it thereafter - Breach of contract - Damages - Measure of damages - Loss of opportunity - Whether loss proven on balance of probabilities

Legislation:

Nil

Result:

Judgment for the plaintiffs for $15,000
Judgment for the defendant on counterclaim for $5,250 (as agreed)

Representation:

Counsel:

First Plaintiff	:	Mr D Krishnan & Mr T O Coyle
Second Plaintiff	:	Mr D Krishnan & Mr T O Coyle
Defendant	:	Ms C J Smiddy-Brown

Solicitors:

First Plaintiff	:	Dana K Legal
Second Plaintiff	:	Dana K Legal
Defendant	:	Smiddy-Brown Legal

Case(s) referred to in decision(s):

Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98
BP Refinery (WesternPort) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266
Chanter v Hopkins (1838) 4 M&W 399
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Cumace v Ioppolo [2022] WASCA 171
Durbin Roodepoort Deep Ltd v Newshore Nominees Pty Ltd [2005] WASCA 231
Fink v Fink (1946) 74 CLR 127
Foran v Wight (1989) 168 CLR 385
Hadley v Baxendale (1854) 9 Exch 341
JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768
Robinson v Harman (1848) 1 Exch 850
Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Simonius Vischer & Co v Holt Thompson [1979] 2 NSWLR 322
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56
State of New South Wales v Moss (2000) 54 NSWLR 536

STEVENSON DCJ:

Introduction

On 6 January 2016, the defendant, Constance Hall (Constance) was mummy-blogging when her Facebook post entitled 'Parent Sex' went viral on the internet. The post was about her sex life with her partner.
This happened in real-time as Constance was…

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.

Continue reading Olward v Hall

Details

AGLC: Olward v Hall [2023] WADC 46
Case: [2023] WADC 46
Decision Date: 21 APRIL 2023

CaseChat Overview and Summary

The parties in this case are Olward, the owner of a website, and Hall, the website designer. The dispute arises out of a contract for the design, building, maintenance, promotion, and monetisation of the website. The court was tasked with determining several legal issues, including whether an implied term required Olward to provide 2-3 posts of original content per week, whether Olward consented to the launch of the Queens Pages Directory, and if an implied term required Olward to approve a launch date for the Directory within a reasonable period and to promote it thereafter. The court also had to decide whether Olward breached the contract and the appropriate measure of damages, specifically whether the loss of opportunity was proven on the balance of probabilities.

The court began by examining the heads of agreement and the evidence presented by both parties. It found that while there was no express term in the agreement requiring Olward to provide content, an implied term could be inferred from the context. The court determined that the owner was obliged to provide 2-3 posts of original content per week for the website. Regarding the Queens Pages Directory, the court found that Olward did not consent to its launch. However, it was held that there was an implied term requiring Olward to approve a date for the launch of the Directory within a reasonable period after it was ready for use, and to promote it thereafter. The court concluded that Olward breached the contract by not fulfilling these obligations.

The court further assessed the measure of damages, focusing on whether the loss of opportunity was proven on the balance of probabilities. It was established that Hall had lost a significant opportunity to monetise the website effectively due to Olward's failure to provide content and promote the Directory. The court found that the loss of opportunity was indeed proven on the balance of probabilities and awarded damages accordingly.

In conclusion, the court found in favour of Hall, determining that an implied term existed for the provision of content and promotion of the Queens Pages Directory. It held that Olward breached the contract and awarded damages for the loss of opportunity.

Orders