Military Road Island Pty Ltd v Priority Plus Capital Pty Ltd; Priority Plus Capital Pty Ltd v Military Road Island Pty Ltd [2008] NSWDC 268

New South Wales District Court

CITATION: Military Road Island Pty Ltd v Priority Plus Capital Pty Ltd; Priority Plus Capital Pty Ltd v Military Road Island Pty Ltd [2008] NSWDC 268

HEARING DATE(S): 26 November 2008

JUDGMENT DATE: 22 December 2008

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: (1) Verdict for the plaintiff against the defendants for $200,000 plus interest to the date of judgment. (2) Dismiss cross claim.

CATCHWORDS: CONTRACTS - Total failure of consideration - interpretation

CASES CITED: Baltic Shipping Co v Dillon (1993) 179 CLR 344 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353

Military Road Island Pty Ltd (Plaintiff/Cross Defendant) PARTIES: Priority Plus Capital Pty Ltd (First Defendant/Cross Claimant) Anthony Brian Fleiter (Second Defendant) Phillip Thomas Austin Whittaker (Third Defendant)

FILE NUMBER(S): 1519 of 2008

COUNSEL: N Ford, solicitor (Plaintiff) S Bliim (First, Second and Third Defendant)

SOLICITORS: Brischetto & Ford (Plaintiff) Macquarie Legal Practice (First, Second and Third Defendant)

JUDGMENT

Issues

1 The issues in this case are, first, whether the plaintiff ("MRI") is entitled to recover $200,000, being what is called in the relevant contract a "success fee", and, secondly, whether the first defendant and cross-claimant ("Priority Plus" or "PP") is entitled to a refund of some $267,000 or part thereof, being what is called a "know-how" fee. MRI contends that PP has resold the subject matter of the agreement to a third party, which awakens clause 4.9 of the agreement. PP contends that MRI failed to supply what it expected by way of "know-how".