J P Morgan Australia Limited -v- Consolidated Minerals Limited [2010] NSWSC 100

New South Wales Supreme Court

CITATION : J P Morgan Australia Limited -v- Consolidated Minerals Limited [2010] NSWSC 100 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 22, 23, 24 February 2010

JUDGMENT DATE : 18 March 2010

JUDGMENT OF : Hammerschlag J

DECISION : Subject to the effect of any arthimetical recalculation in accordance with these reasons, the plaintiff's claim dismissed with costs. The defendant's cross-claim dismissed with costs.

CATCHWORDS : CONTRACTS – construction of commercial contracts – defendant retained plaintiff to advise on takeover defence strategy – engagement provided for payment of different fees depending on the outcome of takeover offers – a number of takeover offers were made by different offerors, one of which resulted in the takeover of the defendant – dispute as to what fees are in the circumstances payable and how they are to be calculated – ACCORD AND SATISFACTION – defence of accord and satisfaction – defendant proffered cheque for an amount less than the plaintiff was claiming under cover of a letter stating that the cheque was "in full and final settlement of the matter" – plaintiff banked cheque and sent letter that it did not accept the payment in full and final settlement – whether the banking of the cheque in the circumstances brought about a binding accord and satisfaction

CATEGORY : Principal judgment

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 International Air Transport Association v Ansett Australia Holdings Ltd (Subject to Deed of Company Arrangement) (2008) 242 ALR 47 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Franklins Pty Limited v Metcash Trading Ltd [2009] NSWCA 407 [19] Wilkie v Gordian Runoff Limited (2005) 221 CLR 522 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 Chartbrook Limited v Persimmon Homes [2009] 1 AC 1101 Claremont Petroleum NL v Cummings & Anor (1992) 9 ACSR 1 Salomon v Salomon & Co Ltd [1897] AC 22 McDermott v Black (1940) 63 CLR 161 CASES CITED : Osborn v McDermott [1998] 3 VR 1 Illawong Village Pty Limited v State Bank of New South Wales [2004] NSWSC 18 FT Jeffrey v Evington Holdings Pty Ltd (Receiver and Manager Appointed) (Supreme Court of Victoria, Full Court, 24 November 1977, unreported) Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 McMahon's (Transport) Pty Ltd v Ebbage [1995] 1 Qd R 185 Empirnall Holdings Pty Limited v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Day v McLea (1889) LR 22 QBD 610 Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421 Wiseman v MQH Developments (Supreme Court of Victoria, Chernov J, 19 May 1997, unreported) Wicks v First National Picture (Australasia) Ltd (1931) 31 SR (NSW) 427 Homeguard Products v Kiwi Packaging [1981] 2 NZLR 322 Bond Media Ltd v John Fairfax Group Pty Ltd (1988) 16 NSWLR 82