Look: Production, Casting & Artist Management Pty Limited v Tania Winkler [2005] NSWSC 688

New South Wales Supreme Court

CITATION : Look: Production, Casting & Artist Management Pty Limited v Tania Winkler [2005] NSWSC 688

HEARING DATE(S) : 11 July 2005

JUDGMENT DATE : 18 July 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons; the exhibit may be returned.

CATCHWORDS : Contract for production shoots - extrinsic evidence - implied term - entire contract - reasons - indemnity costs and leave.

CASES CITED : ICTA Investments Pty Limited & Anor v GE Commercial Corporation (Australia) Pty Limited & Anor [2005] NSWSC 656

Look: Production, Casting & Artist Management Pty Limited (Plaintiff) PARTIES : Tania Winkler (Defendant)

FILE NUMBER(S) : SC 10443/05

Mr P A Fury (Plaintiff) COUNSEL : Mr F Austin (Defendant)

Baybridge Lawyers (Plaintiff) SOLICITORS : Paul Bard Lawyers (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 9138/03

LOWER COURT JUDICIAL OFFICER : DA Sweeney LCM

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

18 July 2005

10443 of 2005 Look: Production, Casting & Artist Management Pty Limited v Tania Winkler

JUDGMENT 1 His Honour: The plaintiff conducts an agency which arranges production shoots. The defendant (who was at the relevant time known as Tania Verek) is a model. She was a client of an agent (ACM). 2 The plaintiff and its client (Piazza D'Oro) had in mind using the defendant in a production shoot. Discussions took place (including between Ms Looker on behalf of ACM and Mr Gardiner on behalf of the plaintiff). 3 There was common ground between the parties concerning a number of matters. The remuneration for a production shoot consists of, inter alia, an hourly rate (the shoot fee) plus loadings. Usually, the shoot fee and loadings are separately negotiated. Usually, shoots are taken up by the client. Usually, loadings are not payable if the shoot is rejected by the client. 4 In this case, Mr Gardiner stipulated a lump sum of $18,000 for the shoot, loadings, superannuation and any other payments. He said that he would not use the defendant unless she agreed to his terms and conditions. 5 The plaintiff sent by facsimile to ACM a "deal memo" (Exhibit DE1, p110). It was orally accepted by Ms Looker. It seems to be common ground that an agreement was made on 4 April 2003. 6 The deal memo set out, inter alia, the performer's name ("Tania Verek"), the job ("Woman in doorway etc for Piazza D'Oro") and the talent fee ("$18,000 plus GST & ASF (inclusive of shoot time, loadings)"). 7 The defendant performed her role in the shoot (it involved about five hours). Subsequently, the client decided not to use the shoot. 8 A dispute arose concerning what should be paid to the defendant for the shoot. The plaintiff did not wish to pay any loadings. 9 By letter dated 11 June 2003 (the letter), the solicitors for the defendant made an offer of compromise to the plaintiff (to accept an amount of $14,000 provided that the offer was accepted in writing before the end of the week, with payment to be made within 14 days of that date). The offer was not accepted. 10 The defendant brought proceedings in the Local Court. Her claim was pleaded in the alternative. She was successful in a claim founded on the deal memo. She recovered judgment of a sum in the order of $20,000. She also obtained an order for costs on an indemnity basis. 11 The plaintiff has brought an appeal to this court. An appeal lies where there has been error in point of law. In this case, the plaintiff also seeks to challenge the order made for costs. An appeal does not lie against such an order except by leave of the court. 12 The plaintiff bears the onus of satisfying the court that there is error which justifies the disturbing of the decision of the Local Court. 13 The summons contains 11 grounds of appeal. Ground 5 is no longer pressed. 14 It is unnecessary to individually address each and every one of the pressed grounds. The grounds fall into categories. 15 I shall first address what might be described as the principal grounds that were argued. They are related. It was alleged that the Magistrate fell into error in having regard to extrinsic evidence. It was alleged that she fell into error in finding that the agreement was made not between the plaintiff and ACM, but between the plaintiff and the defendant. It was alleged that she fell into error in rejecting the plaintiff's argument that a term should be implied into the agreement to deal with the unexpected rejection of the shoot (the defendant was only to be paid for loading if the client used the photographs). It was also alleged that the Magistrate failed to give sufficient reasons for the rejection of that argument. 16 The Magistrate found that the terms of the agreement were expressed in the deal memo. In her judgment, she referred to the agreement as "a lump sum agreement". She found that ACM (through Ms Looker) entered into the agreement with the plaintiff as agent for the defendant. 17 In the reaching of these findings, the Magistrate did refer to matters of evidence and did express herself as doing so on the balance of probabilities. 18 Be that as it may, I am not satisfied that the decision made by the Magistrate should be disturbed. However it was reached, I see no error in the result. 19 The deal memo is a document that embodies the terms of the agreement. The Magistrate's finding as to the parties thereto and the terms thereof are consistent with a proper construction of that document. 20 Whilst it may be said that the Magistrate's reasons could have been more expansive, I am not satisfied that they were such as to justify the disturbing of her decision. 21 It appears that neither party took the stance in submissions that the agreement should be regarded as an entire contract. It may be that during submissions to the Magistrate, the talent fee may have been referred to as "a lump sum". In referring to the agreement as "a lump sum" agreement, I do not consider that the Magistrate was expressing the view that the agreement between the parties should be regarded as an entire contract. 22 The application for leave has been made out of time. No explanation is offered for delay. 23 There is little authority on the question of what must be shown to obtain a grant of leave (ICTA Investments Pty Limited & Anor v GE Commercial Corporation (Australia) Pty Limited & Anor [2005] NSWSC 656). 24 In this case, a relatively modest amount is involved. There can be no question of principle or of public importance. I do not consider that there has been manifest error. 25 The Magistrate had a discretionary power to award costs on an indemnity basis. In exercising that power, she was entitled to have regard to the letter, its non-acceptance and the amount recovered by the defendant. I am not satisfied that there was any error in the exercise of that discretion. 26 In the circumstances of this case, it seems to me that any application for leave was doomed to failure. Leaving aside other problems, it would be futile to grant an extension of time in which to bring it. 27 The appeal fails. The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibit may be returned. **********