PERMASTEELISA PTY LTD v FOUR SEAS NETWORK PTY LTD [2000] NSWCA 98

New South Wales Court of Appeal

CITATION : PERMASTEELISA PTY LTD v FOUR SEAS NETWORK PTY LTD [2000] NSWCA 98 FILE NUMBER(S) : CA 40586/98 HEARING DATE(S) : 16 March 2000 JUDGMENT DATE : 18 April 2000

PARTIES : PERMASTEELISA PTY LTD v FOUR SEAS NETWORK PTY LTD JUDGMENT OF : Mason P at 1; Priestley JA at 45; Meagher JA at 46

LOWER COURT JURISDICTION : Commercial Division LOWER COURT CD 40214/97 FILE NUMBER(S) : LOWER COURT Bainton J JUDICIAL OFFICER :

COUNSEL : Appellant: M H Tobias QC/ D H Murr SC Respondent: P M Jacobson QC/ J D Smith SOLICITORS : Appellant: Maurice Marshan Respondent: Benjafield Milne CATCHWORDS : Contract - invitation to tender - repudiation by inactivity - lobbyist's entitlement to commission - maintenance of the basic conditions of the first tender proposal - departure between first and second tender proposals. (ND) DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40586/98

MASON P PRIESTLEY JA MEAGHER JA

Tuesday 18 April 2000

PERMASTEELISA PTY LTD v FOUR SEAS NETWORK PTY LTD

JUDGMENT 1 MASON P: The respondent was described by the trial judge, Bainton J, as a lobbyist. It is a company through which two men called Benny Leung and Noel Ling carry on their business, mainly in China. That business includes negotiating and lobbying for contracts. 2 The appellant manufactures prefabricated building components, especially the curtain walls or outside cladding of high-rise buildings. In 1996 its managing director was Mr Lucio Mafessanti. 3 In 1995 the appellant commenced to supply cladding for a project called King Tower in Shanghai. By February 1996 there was a dispute between the building owner and the appellant concerning the appellant's performance, although work resumed in July 1996. 4 In March-April 1996 the appellant prepared tenders for a second Shanghai project known as the Metals Exchange Building, but that eventually came to nothing by October 1996. 5 This appeal concerns a third project in Shanghai, known as the COSCO building. 6 It was never in dispute that a commission agency contract relating to the COSCO project was entered into between the parties in April 1996. There were discussions which culminated in a letter dated 22 April 1996 drafted by the appellant and signed by representatives of the parties. The letter is in the following terms: This is to confirm that Permasteelisa Pty Ltd has agreed: 1. To pay [the respondent] 7% of the contract price as commission for works to be carried out on the "COSCO building of Shanghai" project. 2. The commission will be payable on pro-rata basis on receipt of progress payment for the project with the last payment to be done at last project payment or retention release. 3. Any pre paid expense for the project shall be deducted from the first payment of the commission. 4. All the above clauses apply only if the basic conditions as per our tender proposal are maintained in the definitive letter of award and/or contract for the project.