Perry v Anthony

[2016] NSWCA 56

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Perry v Anthony [2016] NSWCA 56

Hearing dates:

3 March 2016

Decision date:

24 March 2016

Before:

Beazley P;
Gleeson JA;
Emmett AJA

Decision:

1.   Appeal dismissed;

 

2.   Order the appellants to pay the respondent’s costs of the appeal;

 3.   The parties are granted liberty to apply in respect of moneys paid into Court pursuant to orders made in these proceedings on 14 September 2015.

Catchwords:

CONTRACT – contractual indemnity – scope and extent of indemnity – scope and extent always a question of construction

 

CONTRACT – formation – requirement of consideration – mutual promises constitute sufficient consideration

  CONTRACT – construction of commercial contracts – contracts to be construed as a whole according to terms and what a reasonable business person would have understood them to mean

Cases Cited:

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR
Bofinger v Kingsway Group Limited [2009] HCA 44; 230 CLR 269
Gibson Motor Sports Merchandise Pty Ltd and Ors v Robert James Forbes & Ors [2005] FCA 749
Rankin v Palmer [1912] HCA 95; 16 CLR 285
United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; 157 CLR 1
Wren v Mahony [1972] HCA 5; 126 CLR 212

Texts Cited:

O’Donovan and Phillips, Modern Contract of Guarantee

Category:

Principal judgment

Parties:

Vince Perry (First Appellant)
Perry Properties Pty Ltd (Second Appellant)
Patricia Catherine Anthony (Respondent)

Representation:

Counsel:
G Sirtes SC; P English (Appellants)
D Pritchard SC; A Macauley (Respondent)

  Solicitors:
Houston Dearn O’Connor (Appellants)
Taperell Rutledge Lawyers (Respondent)

File Number(s):

CA 2015/234063

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

Patricia Catherine Anthony v Vince Perry and Anor [2015] NSWDC 120

Date of Decision:

17 July 2015

Before:

Mahony SC DCJ

File Number(s):

14/127711

Headnote

[This headnote is not to be read as part of the judgment]

The first appellant was an accountant and the principal of the second appellant corporation. In September 1999, the respondent entered into an agreement with the appellants, pursuant to which the respondent would advance $250,000 for the purpose of currency trading.

Under the terms of the September 1999 agreement, both appellants indemnified the respondent as to her capital. The management of the currency was to be in the absolute discretion of the first appellant. Profits were to be distributed equally between the respondent and the second appellant, on a monthly basis. The agreement provided that capital was not to be distributed in lieu of profits.

In November 1999, the parties agreed that the respondent would invest a further $250,000. This agreement was recorded on the bottom of the September 1999 agreement and was on “identical terms and conditions as stated in the above agreement”. In February 2000, a further endorsement was made on the bottom of the September 1999 agreement for the investment of an additional $200,000 on the same terms and conditions as previously.

Certain…