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WA Pines Pty Ltd v Bannerman

WA Pines Pty Ltd v Bannerman

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Case Copied 3 June 1980 16 min read

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Re: HOUSEWIVES UNITED BUYERS CO-OPERATIVE LIMITED
And: REDDY CUT GARMENTS PTY. LIMITED; THE TRUSTEES OF THE SISTERS OF ST.
JOSEPH
(1980) 42 FLR 106
No. G74 of 1979
Motion for Contempt

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.(1)

CATCHWORDS

Motion for Contempt - Breach of undertaking in terms of settlement - Whether undertaking was an undertaking to the Court - Construction of undertaking - Ambiguity thereof - Whether breach clearly shown to have taken place - No evidence on which damages could be assessed.

Trade Practices Act

Contempt - Breach of undertaking in terms of settlement - Whether undertaking was undertaking to court - Construction of undertaking - Ambiguity therin - Whether breach clearly shown to have taken place - No evidence on which damages could be assessed - Trade Practices Act 1974 (Cth) - Federal Court of Australia Rules, O.37; O.40, r.6.

HEADNOTE

An action by the applicant against the respondent and another alleging breaches of the Trade Practices Act 1974 was settled upon the respondent giving certain undertakings. The action was then dismissed by the court by consent. The respondent constituted a body corporate and conducted primary and secondary schools. The undertaking placed restrictions on the respondents "advertising in school bulletins". The applicant by motion sought orders including damages against the respondent alleging that the undertaking had been breached.

Held: (1) The undertaking given by the respondent was an undertaking to the court and not merely an undertaking inter partes as: (a) The undertaking was included in the terms of settlement which were before the court and on the faith of which the court had sanctioned a particular course of action and made orders dismissing the application and for costs; Australian Consolidated Press Ltd. v. Morgan (1965), 112 CLR 483, referred to. (b) The solicitor for the respondent had given the undertaking on behalf of his client and it had been noted by trial judge. (2) The applicant had not established that the undertaking had been breached by the respondent as: (a) There was no evidence as to the authority of the person whose act was alleged to have breached the undertaking; Heaton's Transport (St. Helens) Ltd. v. Transport and General Workers' Union, (1973) AC 15, applied. (b) The undertaking was ambiguous as to the obligation it imposed on the respondent. (c) In any event a breach of the undertaking had not been shown as - (i) the circular of the respondent said to breach the undertaking was not "advertising", and (ii) the circular had been dispatched by the respondent before the terms of settlement had been received.

HEARING

Sydney, 1980, May 16, 21, 23, 26; June 3. #DATE 3:6:1980

NOTICE OF MOTION

Notice of motion that the respondents be punished for contempt of court.

Janet Coombs, for the applicant.

G. Q. Taperell, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Vincent Love & Co.

Solicitors for the respondent: Carroll & O'Dea.

T. J. GINNANE

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: [1980] FCA 79
Decision Date: 03 JUNE 1980

CaseChat Overview and Summary

WA Pines Pty Ltd sought a contempt order against Bannerman, alleging a breach of an undertaking given in settlement terms. The case was heard in the Supreme Court of Western Australia. The dispute centred on whether Bannerman had breached the undertaking, which was allegedly made in the context of a settlement agreement, by not fulfilling certain obligations. The primary legal issue was whether the undertaking was indeed an obligation to the court, and if so, whether the alleged breach was sufficiently proven. Additionally, the court needed to determine if the undertaking was ambiguous in its terms, which could affect the enforceability of the contempt order.

The court examined the language of the settlement agreement to ascertain whether the undertaking was indeed an obligation to the court. It found that the wording of the settlement was ambiguous and did not clearly establish the undertaking as a court-enforceable obligation. Without clarity on this point, the court was unable to determine whether a breach had indeed occurred. Furthermore, even if an undertaking was identified, the court found that there was no evidence to support an assessment of damages, making it impossible to establish a breach conclusively. Consequently, the application for contempt was dismissed.

The court concluded that the ambiguity in the settlement terms meant that no breach could be established with certainty. As a result, the application for a contempt order was dismissed, and the costs of the motion were ordered to be paid by the applicant. This decision underscores the importance of clear and precise language in settlement agreements, particularly when obligations are intended to be court-enforceable.

Orders

Orders of the court

1. The application be dismissed.

2. The costs of the Secondnamed Respondent in this motion be paid by the Applicant.

Application dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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