Batterham v Makeig [2010] NSWCA 86

New South Wales Court of Appeal

CITATION: Batterham v Makeig [2010] NSWCA 86

HEARING DATE(S): 1 and 2 March 2010

JUDGMENT DATE: 22 April 2010

JUDGMENT OF: McColl JA at [1]; Young JA at [2]; Sackville AJA at [126]

(1) Appeal allowed. (2) Orders of Ward J set aside. (3) In lieu order that the proceedings be dismissed with costs. DECISION: (4) Order that the cross-claim be dismissed. (5) Order that the respondent repay to the first appellant within 14 days any monies obtained by him in reliance of the judgment below. (6) Order that the respondent pay the appellants' costs of the trial and of the appeal. (7) With respect to the costs of the appeal the respondent is to have a certificate under the Suitors Fund Act 1951. (8) The parties may apply for any further orders for restitution or generally, but only if a notice of motion is filed within 14 days.

CATCHWORDS: CONTRACTS- construction and interpretation of contracts- whether on its proper construction, a clause requiring respondent to pay consultants' costs and costs ancillary to consultants' services obliged the respondent to pay council fees that parties knew were being utilised to pay consultants' costs incurred by the council- primary judge focused on the character of fees as "lodgement fees"- in the circumstances, and according to the language of the clause and the layman's agreement as a whole construed according to its commercial purpose, the trial judge erred in finding that the respondent was not obliged to pay fees. CONTRACTS- discharge, breach and defences to action for breach- whether respondent breached and repudiated agreement and whether appellant justified in treating breach as repudiation- whether adherence to an incorrect interpretation of a contract when bona fide dispute as to true construction- arguable construction not the reason for non-payment- where respondent did not pay fees in a timely manner as part of "poker game" to obtain written agreement as to refunding and remuneration from council- viewed objectively, the "poker game" conveyed a blanket refusal of an essential term and constituted a repudiation justifying appellant's termination. DAMAGES- discount rate for vicissitudes and present value- primary judge discounted damages by 12.5% for the possibility that put and call options exercisable until November 2012 might not be exercised- further discount required to cover present value of money and general vicissitudes. TRADE PRACTICES- misleading or deceptive conduct- whether project agreement should be set aside because respondent's representation that he was an "experienced project consultant" constituted misleading or deceptive conduct- question of fact whether respondent was "experienced"- whether "professional" connoted competence- claim fails because no reliance on the representation and thus no loss "by" respondent's conduct under Fair Trading Act 1987, ss 68, 72.