Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154

CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract.

David Rayment and Andrew Smorchevsky represented the Respondent.

Reasons for the decision can be found here.

Trentelman v The Owners - Strata Plan 76700; The Owners - Strata Plan 76700 v Trentelman [2021] NSWSC 155

CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land

EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused

Elisabeth Peden and Jennifer Mee represented the First Defendant and Plaintiff respectively in proceedings.

Reasons for this decision can be found here.

Yu v Yu [2020] NSWSC 1904

EQUITY – equitable remedies – vitiating factors – common mistake – discussion of the existence and scope of jurisdiction to set aside contracts for common mistake in equity – whether parties to an agreement were operating under a common misapprehension that was fundamental to the agreement – no fundamental misapprehension.

JUDGMENTS AND ORDERS – res judicata and cause of action estoppel – no issue of principle.

CONTRACTS – formation – illegality – no issue of principle.

CONTRACTS – terms – implied terms – no issue of principle.

CONTRACTS – construction – no issue of principle.

Dr. Christos Mantziaris represented the Second Defendant.

Reasons for the decision can be found here.

Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – where neither party made a note of the agreement – where neither party confirmed to the other in writing an understanding of the agreement – where no one else present when agreement made – where no dispute that a binding agreement was made concerning sharing expenses and profits of the venture – whether agreement was subject to the plaintiff finding buyer for the consolidated sites.

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – whether parties’ post contractual conduct casts light on true nature of the agreement.

David Pritchard SC and David Rayment represented the Plaintiffs.

Reasons for the decision can be found here.

JABBCORP (NSW) PTY LIMITED V STRATHFIELD GOLF CLUB [2020] NSWSC 1317

CONTRACT – Construction and interpretation – Consideration of the principles of contract interpretation – Whether application of principles of contractual interpretation modified by entire agreement clause – Relevance of surrounding circumstances.

David Rayment represented the Defendant.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC represented the Second and Third Respondents.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314

EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement.

EVIDENCE — Opinion evidence — Expert opinion – economist’s opinion about conduct of bank towards customers – admissibility – Makita principles.

CONTRACTS – Performance – Variation of Terms – variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party.

CONTRACTS — Misleading conduct under statute — variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel.

BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice.

BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance.

BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2019] FCA 721

ADMIRALTY – demise charter – construction – nature of demise charter – warranty that vessel would be classed and surveyed to carry 800 passengers – where vessel had not been classed or surveyed at time of entry into charterparty – whether survey for maximum of 450 passengers breach of warranty

CONTRACTS – notice to remedy breach –where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future”

CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms – whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound

EQUITY – joint venture – fiduciary duty – where party obliged to obtain survey and classification of vessel to carry 800 passengers informs other party that surveyor will only issue for lesser number and parties should do work later to bring vessel to standard for 800 passengers – where consequence is other party would lose guaranteed net profit entitlement under joint venture agreement – whether one party had fiduciary duty to inform other of potential loss of guarantee in advising course of action – whether conflict between interests of joint venturers – whether duty to inform of conflict of interests –whether party to joint venture agreement deemed to know its provisions

Tim Castle with Ms Ermelinda Kovacs represented the Applicant.

Reasons for the decision can be found here.

Hopkins v Symvania Waterways Limited & Ors

Steven Cominos appeared for the 4th and 5th defendants on a motion to dismiss a claim against them for unconscionable conduct and misleading or deceptive conduct. The claim was dismissed in its entirety by Pembroke J on 25 May 2018.

Baca v Union Standard International Group

Steven Cominos appeared for the Respondent, a margin FX issuer, in an international arbitration involving a claim brought by a former client. The Respondent was successful in upholding its decision to confiscate the claimant’s profits relying on the terms of its product disclosure statement. Those terms permitted the confiscation of profits due to the claimant having engaged in price latency arbitrage trading and its failure to disclose its use of plug-in software when executing margin FX trades on the Respondent’s platform. All the claimant’s allegations of breaches of the Corporations Act by the Respondent and that the relevant contractual terms were ‘unfair terms’ under the ASIC Act were also rejected.

QBE Underwriting Ltd as Managing Agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd (2018) 97 NSWLR 459

INSURANCE— Liability insurance — Exclusions — Where insured entered agreement with third party containing warranties and agreement to indemnify — Whether insured would have been liable in absence of such agreement.

INSURANCE —  Insurance Contracts Act 1984 (Cth) — Duty of disclosure — Scope and duration — Where insurer disclosed to insured letter warning of possible obligations to indemnify third parties —  Insurance Contracts Act 1984  (Cth), s 21.

CONTRACTS — Construction — Interpretation — “‘For’” — “‘In respect of’” — Whether contract of insurance extended to indemnity for adverse costs order.

Tim Castle represented the Respondent.

Reasons for the judgement can be found here.

Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190

CONTRACT — implied terms — implication of duty or obligation of good faith and reasonableness — franchise agreement — where franchisor had discretionary power to set maximum prices for products — where parties accepted that power subject to duty of good faith — scope of duty of good faith and reasonableness — whether franchisor was obliged to act reasonably in an objective sense

NEGLIGENCE — franchise agreement — whether franchisor owed duty of care to franchisees in exercising power to set maximum prices for products — where franchisee alleged that franchisor owed franchisees a duty to exercise power so that franchisees could make, maintain or increase profits

CONSUMER LAW— unconscionable conduct — franchise agreement — where franchisee alleged that franchisor had engaged in unconscionable conduct in setting maximum prices for products

Tim Castle, James Arnott and Simona Gory represented the Appellant.

Reasons for the judgement can be found here.

Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546

From the Supreme Court of New South Wales:

BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach

Michelle McMahon was led by Andrew Pickles SC for the plaintiffs.

Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328

CONTRACTS — Construction — Penalties — Commercial loan facility — Whether default interest provision constituted penalty — Determination as at date contract made — Whether presumption that default interest a penalty — Whether default interest extravagant or unconscionable — Whether function of default interest only to punish — Whether pre- estimate of loss required.

Noel Hutley SC and Tim Castle for the Appellant.

Reasons for the judgement can be found here.

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd [2016] FCAFC

INSURANCE - operation of s 54 of Insurance Contracts Act 1984 (Cth) on claim for contribution between the insurers where the second policy would respond to claim by insured invoking s 54 -whether s 54 applied to the claim by the insured - whether the operation of s 54 meant the appellant was not able to refuse to pay the claim made by the insured - whether the respondent insurer could set up putative liability of the appellant to the insured as a basis for a claim for contribution by it - appeal dismissed

Tim D. Castle appeared for the respondent.

Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97

CONTRACT – sale of business – vendor entitled to interest on outstanding contract price unless in default – whether vendor in default by allegedly failing to make certain adjustments – CONTRACT – sale of business – vendor obliged to assist purchaser in certain respects – whether breach of contract –whether obligation required unilateral assistance absent request from purchaser – DAMAGES – whether evidence of causation and loss sufficient – PROCEDURE – whether new argument can be raised for first time on appeal.

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act.
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease.
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave.

Robert Angyal SC appeared for the successful appellant.

Helensburgh Property Management Pty Ltd v Brady [2016] NSWSC 253

DAMAGES – where the defendant in breach of contract in poaching clients during and after employment with plaintiff – whether plaintiff entitled to damages assessed on basis of diminution in value of rent roll – whether clients would have left the plaintiff irrespective of defendant’s breach – assessment on basis of lost commissions.

Richard Parsons appeared for the defendant.

Menzies v Paccar Financial Pty Ltd [2016] FCA 400

ANSHUN ESTOPPEL - Whether applicants precluded by Anshun estoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success

David Rayment appeared for the finance company, PACCAR Financial Pty Ltd instructed by Mills Oakley Solicitors.

Diao v Cohen [2016] NSWSC 96

CONTRACT – Agreement – Subject to contract – Whether parties intended to be immediately bound - No written agreement signed as contemplated – Held, no contract.

RESTITUTION – Moneys had and received – Failure of consideration – Change of position defence – Whether inequitable to require recipient to pay.

Richard Parsons appeared for the successful plaintiff.