Van der Sluys and anor v Anaconda Nickel NL and others [2002] NSWSC 673

New South Wales Supreme Court

CITATION : Van der Sluys and anor v Anaconda Nickel NL and others [2002] NSWSC 673 revised - 7/08/2002 FILE NUMBER(S) : SC 50040/00 HEARING DATE(S) : 3-6 and 10-13 December 2001, 17 and 18 April 2002. JUDGMENT DATE : 31 July 2002

PARTIES : Stephen van der Sluys and Richard Maish (Plaintiffs) Anaconda Nickel NL, CIBC World Markets Australia Corporate Pty Ltd, CIBC Wood Gundy Securities Inc and Canadian Imperial Bank of Commerce (Defendants) JUDGMENT OF : Brownie AJ at 116

Plaintiffs: R.J Webb COUNSEL : First Defendant: R. McColl SC and R.S. Angyal Second, Third & Fourth Defendants: N.Perram Plaintiffs: Kemp Strang SOLICITORS : First Defendant: Andersen Legal Second, Third and Fourth Defendants: Mallesons Stephen Jaques CATCHWORDS : Contracts- construction- no question of principle. - Estoppel- construction of contract- not available Magill v National Australia Bank Ltd [2001] NSWCA 221; Commonwealth v Verwayen (1990) 170 CLR 394; CASES CITED : Johnson Matthey Ltd v A C Rochester Overseas Corporation (1990) 23 NSWLR 190, 195; State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170,177; Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999)46 NSWLR 267 at [51-52]. DECISION : See [116]

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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BROWNIE AJ

31 July 2002

50040/00 VAN DER SLUYS and another v ANACONDA NICKEL LIMITED and others JUDGMENT The issues 1 The first defendant wanted to procure some funding, in order to develop a new mine. It engaged the services of various people to assist it to procure the funding, including the services of the second, third and fourth defendants, three related companies. The terms of that engagement entitled the second, third and fourth defendants to various fees including, in certain circumstances, a "success fee". Later, the second, third and fourth defendants assigned to the plaintiffs the right to that success fee, and the plaintiffs now sue the first defendant for that fee. 2 As between the plaintiffs and the first defendant, the issue litigated are: as a matter of the proper construction of the contract of engagement, in what circumstances the fee became payable; whether in the events that happened the fee did become payable; whether the first defendant is estopped from denying that in the events that happened the fee became payable; and whether there was a subsequent agreement made having the effect of extinguishing the entitlement to the fee. 3 The plaintiffs also sue the second, third and fourth defendants, in the alternative to their claim against the first defendant. They say that if they fail as against the first defendant, they are entitled to damages from the second, third and fourth defendants. This claim is put under various legal rubrics, but in very broad terms it is a claim that a representation was made, improperly, to the general effect that the second, third and fourth defendants had not agreed to the extinguishment of the right to that fee. 4 Finally, the first defendant brings a cross-claim against the second and third defendants. In summary, it says that certain fees were overpaid, by mistake, and it sues in restitution. The cross-defendants deny that the fees were paid by mistake; and they raise defences of estoppel and of change of position.