Makeig v Batterham [2009] NSWSC 344

New South Wales Supreme Court

CITATION : Makeig v Batterham [2009] NSWSC 344

HEARING DATE(S) : 24, 25, 26, 27 February; 2, 3, 4, 5 March and 23 April 2009

JUDGMENT DATE : 1 May 2009

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

CATCHWORDS : CONTRACTS – general contractual principles – offer and acceptance – whether signed document constituted binding contract – whether consideration illusory – whether parties evinced intention immediately to be bound – whether terms sufficiently certain to be enforceable – held that there was a binding and enforceable contract – held, further, that defendants estopped from denying binding contract. - CONTRACTS – general contractual principles – construction and interpretation of contracts – whether on proper construction of the contract obligation to pay "Consultants costs and costs ancillary to consultant's services" [sic] extended to Council lodgement fees – held that it did not. - CONTRACTS – general contractual principles – discharge, breach and defences to action for breach – whether plaintiff breached obligation to pay consultants' costs "in a timely manner" – whether plaintiff repudiated of the contract – whether defendants' purported termination of contract itself amounted to repudiation – held that plaintiff had breached obligation to pay consultants' fees in a timely manner – held that this breach did not give rise to a right for the defendants to terminate – held no repudiation by plaintiff – held that the defendants repudiated contract by purporting to terminate contract. - MISLEADING OR DECEPTIVE CONDUCT – whether plaintiff engaged in conduct that was misleading or deceptive – whether representation to third party amounted to representation to first defendant – whether first defendant entered contract by reason of the plaintiff's misleading or deceptive conduct – held that plaintiff did engage in conduct that was misleading or deceptive – held that conduct did not cause first defendant to enter into contract – first defendant did not suffer loss or damage by reason of plaintiff's conduct. - EQUITY - general principles - fiduciary obligations – whether parties engaged in joint venture – whether defendants owed fiduciary duties to first plaintiff – whether parties were partners – held that parties both joint venturers and partners – held that defendants owed fiduciary duties to plaintiff– held that, on termination of joint venture/partnership, defendants could not arrogate whole benefit of joint venture/partnership to themselves – benefits of joint venture/partnership held on constructive trust on terms of former partnership.