CLARADEEN LIMITED v BANKERS TRUST AUSTRALIA LIMITED [1990] NSWCA 43

CLARADEEN LIMITED v BANKERS TRUST AUSTRALIA LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY and CLARKE JA 6 and 9 July 1990, 9 July 1990

[1990] NSWCA 43

Gleeson CJ The first issue in this appeal concerns the construction of a written agreementmade between the appellant and the respondent relating to the respondent's entitlement to remuneration for its services in introducing the appellant to certain vendors of shares and options which the appellant contemplated acquiring and assisting in the negotiations for the sale and purchase of those shares and options.

The written agreement is continued in a letter dated 6 April 1987 signed by the representatives of both parties. That letter is in the following terms: "Further to our recent discussions, we are writing to outline BT's role and fee basis in relation to the acquisition by your company of a substantial interest in Mincoa.

We understand the transaction will initially involve the acquisition (subject to shareholder approval) of approximately 61% of the shares and 61% of the options from major shareholders ('the transaction').

Since BT introduced the principals of Mincoa to you, BT has acted as an intermediary between the parties whereby there now exists an agreement in principle (as per the Letter of Intent) for the transaction to proceed.

Our role and fees for introducing this opportunity, facilitating and advising you generally on the transaction would be as follows:

(1) an hourly rate of $200 in respect of executive time expended on the project;

(2) a success fee of 1% payable only in the event that your company and /or any associated person acquires the securities (ie the shares and options) the subject of the transaction by any means in the next six months and against which the hourly rate charge is rebateable. The 1% would be applied to the amount expended by your company and /or associated person on any acquisition by any means of Mincoa securities within the next six months. No brokerage would be payable in the event that the services of BT Stockbroking Pty Ltd are required; and