O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40 Hearing dates: 7 February 2012 Decision date: 19 March 2012 Before: Campbell JA at [1] Macfarlan JA at [101] Young JA at [102] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACTS - construction and interpretation of - contractual right to have discretions exercised - extent of discretion - where contract provided for payment of bonus at the discretion of the Remuneration Committee - discretion held to constitute a discretion to allocate bonus and a discretion to pay the bonus - appellant informed respondent in writing that he would be 'paid' bonus of $300,000 - appellant argued that bonus had only been allocated, and discretion to pay reserved - held, on evidence, that both discretions had been exercised in favour of the respondent

CONTRACTS - construction and interpretation of - contractual right to have discretions exercised - extent of discretion - where contract provided for payment of bonus at the discretion of the Remuneration Committee - bonus allocated on certain conditions, including provision for claw back - discretionary nature of contractual right extended to allocating bonuses conditionally