Oliveri Legal Pty Ltd v Cassegrain Tea Tree Oil Pty Ltd (No 2) [2023] NSWSC 1082

Supreme Court New South Wales

Medium Neutral Citation: Oliveri Legal Pty Ltd v Cassegrain Tea Tree Oil Pty Ltd (No 2) [2023] NSWSC 1082 Hearing dates: 28 August 2023 - 1 September 2023 Date of orders: 7 September 2023 Decision date: 07 September 2023 Jurisdiction: Equity Before: Elkaim AJ Decision: 1. Verdict and judgment for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceedings. 3. The parties have liberty to raise any issues arising from the costs order. Catchwords: CONTRACTS — execution of Agreement — whether a director had authority to bind company to Guarantee and Indemnity Agreement — where Agreement was signed by one of two company director's contrary to s 127(1) Corporations Act 2001 (Cth) — company not bound by the Agreement CONTRACTS — construction of Agreement — whether the Agreement operates as both an indemnity and guarantee or as just an indemnity — Agreement operates as an indemnity agreement. CONTRACTS — recovery of legal fees under Retainer Agreement — whether recovery is time-barred — time limitation would invalidate Agreement CONTRACTS — public policy — where allowing the recovery of monies under the Retainer would undercut protection provided by the Legal Profession Act 2004 (NSW) Legislation Cited: Corporations Act 2001 (Cth), ss 124, 125, 126, 127, 128, 129 Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW), s 14 Cases Cited: Birjandi v Todaytech Distribution Pty Ltd [2005] WASCA 44 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; [2015] HCA 2 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72; [1975] HCA 49 Dennis Cassegrain & Ors v Gerard Cassegrain & Co Pty Ltd [2012] NSWSC 403 Freeman and Lockyer v Buckhurst Park Properties [1964] 2 QB 480 Gerard Cassegrain & Co Pty Ltd v Claude Cassegrain [2011] NSWSC 1156 Gerard Cassegrain and Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWCA 453 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Junker v Hepburn [2010] NSWSC 88 Soyfer & Anor v Earlmaze [2000] NSWSC1068 Wilkinson v Osborne (1915) 21 CLR 89; [1915] HCA 92 Texts Cited: The Hon Sir William Blair, Lord Brennan, QC, The Right Hon Professor Sir Robin Jacob, Bullen and Leake & Jacob's Precedents of Pleadings (18th ed 2016, Thomson Reuters Professional) Category: Principal judgment Parties: Oliveri Legal Pty Ltd (Plaintiff) Cassegrain Tea Tree Oil Pty Ltd (Defendant) Representation: Counsel: Mr R Wilson SC (Plaintiff) Mr C Locke (Plaintiff) Mr G Sirtes SC (Defendant) Mr D Ratnam (Defendant)