COAL AND ALLIED INDUSTRIES LTD v CAPEL COURT CORPORATION LTD [1992] NSWCA 42

COAL AND ALLIED INDUSTRIES LTD vy CAPEL COURT CORPORATION LTD

SUPREME COURT OF NEW SOUTH WALES COMMERCIAL DIVISION

MAHONEY, CLARKE and HANDLEY JJA 23 November 1992, 11 December 1992 [1992] NSWCA 42

CONTRACT — TERMS — SUCCESS FEE — COURSE OF DEALING — CAUSATION — UNCERTAINTY Contract terms cause of dealing — success fee — whether respondents entitled to fee. — Contract — terms — whether factors relied on by trial judge sufficient to justify conclusion. Held: judge's reasons compelling. Causation — whether a nexus between the activities of the respondent and the outcome contemplated in the contract. Held: respondent had carried out all the services which, upon the contemplated outcome of the contract, entitled it to a success fee. Uncertainty — whether references to success fees were so vague as to be unenforceable. Held: no basis upon which a finding of uncertainty could be grounded.

ORDERS The appeal is dismissed with costs. Mahoney JA I agree with the judgment of Clarke JA and the orders proposed.

Clarke JA Capel Court Corporation Ltd (the respondent) sued Coal and Allied Industries Ltd (the appellant) to recover what was described in the pleadings as a success fee in respect of services rendered by it. The appellant resisted the claim upon the basis that in the events which had occurred the respondent did not become entitled to the fee. The case was heard by Brownie J who, in a detailed judgment in which he dealt comprehensively with the facts and the issues, found for the respondent. An appeal has now been brought from that decision which, in substance, raises three separate grounds of complaint.

The respondent, in its summons, based its claim upon an agreement made on or about 4 August 1988. The appellant, for its part, admitted that there was an agreement between the parties whereby the respondent agreed to carry out advisory work and to provide services to the appellant but denied that the agreement was constituted by the documents which passed between the parties in July and August 1988.