L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 73

Supreme Court New South Wales

Medium Neutral Citation: L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 73 Hearing dates: 30/01/2017, 31/01/2017 and 01/02/2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: See at [152]. Parties to bring in orders. Catchwords: CONTRACTS – contract for accounting and business advisory services – general contractual principles – offer and acceptance – whether contract made and if so on what terms – construction and interpretation of contracts – construing the terms of a contract from the whole of the material – construing the terms of a contract where it is partly written and partly oral – uncertainty of terms – the use of post contractual conduct Legislation Cited: Contracts Review Act 1980 Cases Cited: Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: L.N.E Cunneen & Co Pty Ltd Allan Vincent Blackburn (First Defendant) Carmel Anne Blackburn (Second Defendant) Representation: Counsel: DA Smallbone (Plaintiff) AP Cheshire SC (Defendants)

Solicitors: Anderson Lawyers (Plaintiff) Martin Place Lawyers (Defendant) File Number(s): 2015/148497

Judgment 1. HIS HONOUR: The facts of this case illustrate the wisdom underlying the observation, commonly but incorrectly attributed to Samuel Goldwyn, that "a verbal contract isn't worth the paper it's written on" [1] .

The dispute 1. The plaintiff says that it contracted to provide accounting and business advisory services to the defendants. The plaintiff's case is that it was to be remunerated for those services by a 10% share of profits made by the defendants from their businesses, and by a 10% share of the growth in capital value of the assets of those businesses. 2. The contract on which the plaintiff relies is said to be partly written, partly oral, and partly implied by conduct. The documents relied upon are a draft deed that the plaintiff says it submitted to the defendants in June and again in August 2010, and a response proffered by the defendants in October 2010. To the extent that the contract was oral, the plaintiff relies upon various discussions between its principal, Mr Leigh Cunneen, and the defendants, both at the time the documents were proffered and at other times. The conduct on which the plaintiff relies consists of the parties' alleged performance of various actions in a way that is said to be consistent with, so as to be probative of, the existence of a contract of the kind and including the terms on which the plaintiff sues [2] . 3. The defendants deny the existence of a contract of the kind, or containing the terms, alleged by the plaintiff. They appear to accept that there must have been some form of retainer (it is rather difficult to see how the parties could have behaved as they did in the absence of any contract whatsoever). However, the defendants say, they have performed all their obligations under the retainer, up until its termination in March 2013. 4. The defendants say, further, that if there were a contract between them and the plaintiff in the terms pleaded, they are entitled to relief under the Contracts Review Act 1980 (NSW).