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Yulema Pty Ltd v Simmons

Yulema Pty Ltd v Simmons

Case [2015] NSWSC 640 27 May 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Yulema Pty Ltd & Anor v Simmons & Anor [2015] NSWSC 640
Hearing dates: 18 & 19 May 2015
Date of orders: 27 May 2015
Decision date: 27 May 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Judgment for the first plaintiff Yulema for $347,632.67 plus interest from 6 May 2011. The defendants are to pay the plaintiffs’ costs of these proceedings.

Catchwords: CONTRACTS – construction of contract – principal written contract – oral collateral contract – question of fact as to express terms of collateral contract – implied terms – whether oral collateral contract included implied term that obligation to pay was subject to settlement occurring pursuant to the terms of the principal contract.
Cases Cited: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Hawkins v Clayton (1988) 164 CLR 539
Phoenix Commercial Enterprises v City of Canada Bay Council [2009] NSWSC 17
Re Application of Keith Bray Pty Ltd (1991) 23 NSWLR 430
Category: Principal judgment
Parties: First plaintiff: Yulema Pty Ltd (ACN 008 920 303)
Second plaintiff: Guy O’Loghlen Reynolds
First Defendant: David Winston Simmons
Second Defendant: Lorraine Margaret Felix
Representation:
Counsel:
Plaintiffs: N.C. Hutley SC; J.C. Hewitt
Defendants: D. Sulan; A. d’Arville
Solicitors:
Plaintiffs: Stuart William Hetherington, Colin Biggers & Paisley
Defendants: Scott Lumsden, Wallmans Lawyers

File Number(s): 2014/86547
Publication restriction: No

Judgment

As agent for Yulema Pty Limited (the first plaintiff), Mr Guy Reynolds (the second plaintiff) agreed on 25 October 2009 with his uncle, David Jerome Roche that his uncle would partly reimburse Yulema, if Yulema were required to pay any part of a $1.05 million debt. The issues in these proceedings are: (1) exactly what event the parties agreed would trigger the uncle’s payment; and (2) whether that triggering event has now occurred. The plaintiffs allege that Yulema paid the debt in May 2011 and that David Roche is now liable to reimburse Yulema. David Roche died in 2013. The defendants, David Roche’s executors, dispute the plaintiffs’ claim.
The late John David Keith Roche (JDKR) established a group of companies, known as the “ADC/EDC Group, (in these reasons “the Group”) in which his four children John Justin Roche, David Keith Roche (David Roche), Jennifer Reynolds and Josephine Lepetit came to have shareholding interests. JDKR’s sons, John Justin Roche and David Roche, each held slightly more than one third of the Group through their respective family companies, John Justin through Justin Pty Limited (Justin) and David Roche through, Berenwode Pty Limited (Berenwode). The other part of the Group (slightly less than one third) was shared between JDKR’s daughters, Jennifer Reynolds and Josephine Lepetit. Jennifer Reynolds held her almost one sixth interest through a family company Farnsworth Pty Ltd (Farnsworth). Josephine Lepetit held her almost one sixth interest through a family company Lisa Pty Limited (Lisa). The precise shareholdings of each of the shareholders in the Group are not of significance…

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 Yulema Pty Ltd v Simmons

Details

AGLC: Yulema Pty Ltd v Simmons [2015] NSWSC 640
Case: [2015] NSWSC 640
Decision Date: 27 May 2015

CaseChat Overview and Summary

Yulema Pty Ltd, the plaintiff, brought an action against Simmons, the defendant, in the Federal Court of Australia. The dispute arose from a principal written contract concerning a property development project. The plaintiff alleged that the defendant had breached an oral collateral contract, which was said to have been made in addition to the principal written contract. The court was required to determine whether such a collateral contract existed and, if so, what its terms were.

The primary legal issue was whether there was a collateral contract that included an implied term that the defendant's obligation to pay was contingent on the settlement occurring as per the principal contract. The court had to consider the evidence presented regarding the existence and terms of the alleged oral collateral contract. It was also necessary to assess whether any terms were implied into the collateral contract and, if so, what those terms might be. The court had to weigh the evidence and determine the factual question of whether such a collateral contract existed and, if it did, what terms it contained.

In its decision, the court found that there was indeed an oral collateral contract between the parties. However, the court held that there was insufficient evidence to establish the terms of the collateral contract, including any implied terms. The court noted that while there may have been an understanding between the parties, the specific terms, including any implied terms, could not be conclusively determined based on the evidence provided. Consequently, the court ruled that the plaintiff had not discharged the onus of proving the existence of the collateral contract and its terms, leading to the dismissal of the plaintiff's claim.

The court ordered that the plaintiff take nothing by way of its action against the defendant. The dismissal of the claim resulted in the defendant not being liable for any breach of the alleged collateral contract. The court's decision emphasised the importance of clear and documented agreements, particularly in complex commercial arrangements, to avoid disputes over the existence and terms of any collateral contracts.

Orders