PINATA PTY LTD v MOONAGEE PTY LTD [1995] NSWCA 370

PINATA PTY LTD v MOONAGEE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, SHELLER and COLE JJA 8 November 1995, 6 December 1995

[1995] NSWCA 370

CONTRACT — alleged agreement wholly to satisfy indebtedness — whether agreement established in facts proved — whether performance of agreement had occurred whether actions unconscionable — held: (Dismissing appeal): Agreement not established — no issue of principle.

CONTRACT — agreement to release company from liability — in Commercial Division, Hunter J holds that agreement was not established and in any case that performance of the alleged agreement had not occurred so that the alleged unconscionability was not made out — on appeal to Court of Appeal — held: (Cole JA; Kirby P and Sheller JA concurring): (1) No error shown; — (2) Although there was some discussion between the parties concerning the disputed indebtedness, such discussions never matured into the agreement pleaded and Hunter J correctly so found; (3) Accordingly, the other questions in the appeal did not arise. Howard Smith and Co Ltd v Varawa (1907) 5 CLR 68; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 (CA) applied.

CONTRACT — debt due — whether cheque for $50,000 should be credited — cheque drawn for endorsement.- examination of company records reveal receipt of cheque and endorsement — in Commercial Division, Hunter J holds that moneys were paid to be "taken into account in making a distribution"

held: (Dismissing the cross-appeal): Such finding was correct on the evidence proved and accepted.

Kirby P I agree with Cole JA. Sheller JA I agree with Cole JA.

Cole JA Moonagee Pty Ltd (Receiver and Manager appointed) (Moonagee) sued Pinata Pty Ltd (Pinata) claiming $357,527.48. The action was fought upon the basis of that sum being a debt. Hunter J held that Pinata was indebted to Moonagee in the sum of $335,027.48 and entered judgment in that sum together with interest and costs.