TRANSFIELD PTY LTD v FEIERSINGER [1988] NSWCA 160

TRANSFIELD PTY LTD v FEIERSINGER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MAHONEY JJA 28 March 1988 [1988] NSWCA 160

Contract — construction — appeal from Equity Division — no question of principle. ORDER Appeal dismissed with costs.

Samuels JA The appellant and the first and second respondents were co-venturers in the development of the Mount Blue Cow Ski Resort. They appear to have embarked upon the venture without any formal agreement but nonetheless on the footing that they would supply equally, either by cash or by guarantee, the funds which the vehicle for the development, that is, the third respondent, from time to time would require.

Disputes arose between the co-venturers, as I may call them, and proceedings were commenced in the Equity Division of the Court. These were compromised by an agreement made on 15 May 1986 in the form of a letter with a manuscript addition which, in the view I take, is of no significance. The terms of that agreement are set out in Brownie J's judgment from which the appeal comes and it is unnecessary to recapitulate them, or the provisions of the later agreement of 3 September 1986 to which I will come in a moment.

However, it is necessary to state in general terms that CL1 of the May agreement provided that the parties, that is the co-venturers, should contribute equally a basic sum of $2.5 million and provided also for further capital funds to be provided in various ways according to the exigencies of the budget or by request of the General Manager or Project Manager.

CL8 of the May agreement contained provisions for what was to happen if the funding requirements were not satisfied by the parties, prescribing sanctions which operated largely by diluting the shareholding of the defaulting party in the third respondent.