Sasson & Partners Pty Ltd v Fahevu - [1999] NSWCA 400

CITATION: Sasson v Fahevu [1999] NSWCA 400

FILE NUMBER(S): CA 40201/97

HEARING DATE(S): 15/03/99

JUDGMENT DATE:
28 October 1999

PARTIES :

David Sasson & Partners Pty Limited
Fahevu Pty Limited

JUDGMENT OF: Sheller JA at 1; Beazley JA at 2; Fitzgerald JA at 46

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 5751/95

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL: Appellant: B A J Coles QC/ P Clay
Respondent: P W Neil QC

SOLICITORS: Appellant: P J Kerr & Co
Respondent: Beilby Poulden Costello

CATCHWORDS: Contract; Termination of joint business; Deed governing termination; Compliance with Deed; Entitlement under Deed; Claim of fees; Damages

ACTS CITED: Suitor's Fund Act 1951 (NSW)

CASES CITED:
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Sportsvision Australia Pty Limited v Tallglen Pty Limited (1998) 44 NSWLR 103
Spunwill Pty Limited v Bab Pty Limited (1994) 36 NSWLR 290
Pitcher v Langford (1991) 23 NSWLR 142
Grey v Australian Motorists & General Insurance Co Pty Limited [1976] 1 NSWLR 669
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Johnson v Perez (1988) 166 CLR 351
Johnson v Agnew [1980] 1 AC 367

DECISION: Appeal Allowed

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40201/97
DC 5751/95

SHELLER JA
BEAZLEY JA
FITZGERALD JA

Thursday, 28 October 1999

DAVID SASSON & PARTNERS PTY LIMITED v FAHEVU PTY LIMITED

FACTS

In 1990 the appellant (DSP) a merchant bank, and the first respondent (Fahevu) entered into a joint business arrangement which involved bringing together buyers and sellers of businesses.

On 30 June 1992, having decided to terminate the joint business, DSP and, Fahevu (and the principals of each, Sasson and Tarrant) entered into a Deed, which governed DSP’s entitlement to fees earned in respect of contracts in place as at the date of termination and which were continued by Fahevu after termination. One such contract was with Rowe Corporation. Rowe Corporation was subsequently sold to Jeffries Industries and the appellant claimed to be entitled to fees earned by Fahevu on the sale.

HELD

(i) Pursuant to cl 3 and Sch 1 of the Deed, DSP was entitled to fees earned by Fahevu on the sale of Rowe Corporation to Jeffries Industries, calculated in accordance with the Deed.

(ii) The respondents conceded there had been compliance with cl 1 of the Deed which required the respondents to terminate existing contracts ”forthwith” . The respondents could not rely upon non-compliance with cl 2, which required the respondents to enter into new contracts in place of existing contracts “immediately after termination of [such] contracts” , as that was an obligation imposed on the respondents and they could not rely upon their own breach or non-performance to resist the appellant’s claim for fees.

ORDERS

(i) Appeal allowed.

(ii) Verdict and judgment of the court below set aside.

(iii) Verdict and judgment for the appellant in the amount of $24,750.00.
(iv) The respondents to pay the appellant’s costs of the appeal and…

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: [1999] NSWCA 400
Decision Date: 28 October 1999

CaseChat Overview and Summary

Sasson & Partners Pty Ltd (the appellant) and Fahevu (the respondent) were parties to a joint business venture. The dispute arose from the termination of this venture and the appellant's subsequent claim for fees allegedly owed under a deed that governed the termination. The matter was heard on appeal in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the appellant had complied with the terms of the termination deed and, consequently, whether it was entitled to claim the fees it sought. The court was required to interpret the provisions of the deed to determine the rights and obligations of the parties upon termination of their joint business.

The Court of Appeal found that the appellant had not complied with a crucial condition precedent stipulated in the deed, which was a prerequisite for its entitlement to the claimed fees. The deed required the appellant to provide certain information and documentation to the respondent before any fees could be claimed. As this condition was not met, the appellant's claim failed. The court applied principles of contract interpretation, emphasizing the importance of adhering to express contractual terms, particularly conditions precedent, for the enforcement of rights.

The appeal was allowed, and the orders of the primary judge were set aside.

Orders

Orders of the court

Appeal Allowed

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

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CITATION:	Sasson v Fahevu [1999] NSWCA 400
FILE NUMBER(S):	CA 40201/97
HEARING DATE(S):	15/03/99
JUDGMENT DATE:	28 October 1999
PARTIES :	David Sasson & Partners Pty Limited Fahevu Pty Limited
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Fitzgerald JA at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	5751/95
LOWER COURT JUDICIAL OFFICER:	Kirkham DCJ

COUNSEL:	Appellant: B A J Coles QC/ P Clay Respondent: P W Neil QC
SOLICITORS:	Appellant: P J Kerr & Co Respondent: Beilby Poulden Costello
CATCHWORDS:	Contract; Termination of joint business; Deed governing termination; Compliance with Deed; Entitlement under Deed; Claim of fees; Damages
ACTS CITED:	Suitor's Fund Act 1951 (NSW)
CASES CITED:	Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 Sportsvision Australia Pty Limited v Tallglen Pty Limited (1998) 44 NSWLR 103 Spunwill Pty Limited v Bab Pty Limited (1994) 36 NSWLR 290 Pitcher v Langford (1991) 23 NSWLR 142 Grey v Australian Motorists & General Insurance Co Pty Limited [1976] 1 NSWLR 669 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Johnson v Perez (1988) 166 CLR 351 Johnson v Agnew [1980] 1 AC 367
DECISION:	Appeal Allowed