Eurofinance Corporation Pty Ltd v Carrymoor Investments Pty Ltd [2000] NSWSC 415

New South Wales Supreme Court

CITATION : Eurofinance Corporation Pty Ltd v Carrymoor Investments Pty Ltd [2000] NSWSC 415 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1348/97 HEARING DATE(S) : 18/04/2000 JUDGMENT DATE : 22 May 2000

Eurofinance Corporation Pty Limited (P) PARTIES : Carrymoor Investments Pty Limited (D1) Barry Arthur Waugh (D2) JUDGMENT OF : Young J

COUNSEL : D J Hammerschlag (P) B A Coles QC and S Emmett (D) SOLICITORS : Steingold Abel (P) Musgrave Peach (D) CATCHWORDS : CONTRACT [107]- Implied terms- Allegedly necessary for performance- Vague agreement- In facts and circumstances no implication made. BP Refinery (Westernport) Pty Ltd v Hastings SC (1977) 180 CLR 266 Coghlan v S H Lock (Australia) Ltd (1985) 4 NSWLR 158 Dabbs v Seaman (1925) 36 CLR 538 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 CASES CITED : Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 Mackay v Dick (1881) 6 App Cas 251 Mona Oil Equipment & Supply Co Ltd v Rhodesia Railways Ltd [1949] 2 All ER 1014 Ogdens Ltd v Nelson [1905] AC 109 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Turner v Goldsmith [1891] 1 QB 544 DECISION : See para 62

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J Monday 22 May 2000

1348/97 - EUROFINANCE CORPORATION PTY LTD v CARRYMOOR INVESTMENTS PTY LTD & ANOR

JUDGMENT

1 HIS HONOUR: Essentially, the plaintiff is a finance broker. On 30 March 1994, it entered into a fees agreement with a company, now deregistered, Carrymoor Pty Ltd ("CPL"). The agreement was "amended" on 22 April 1994. Under the amended agreement, CPL was to pay the plaintiff an initial fee of $100,000 plus 5% of CPL's net profit derived from a project at Chatswood up to a limit of $450,000. I will deal with the exact text of the agreement in due course. 2 At all material times, the second defendant, Mr Barry Waugh, was the directing force of CPL though at the commencement of the events being considered in these reasons he was not actually the major shareholder in CPL. However, at all material times Mr Waugh was either the person with authority to make decisions, or was the controller of what I will call "the Carrymoor interests" which include the interests of Mr Waugh personally, the interests of CPL and the interests of the present first defendant Carrymoor Investments Pty Ltd ("Carrymoor"), a company which was incorporated on 17 March 1994.