Management Services Australia Pty Ltd trading as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Management Services Australia Pty Ltd trading as Peak Performance PM v PM Works Pty Ltd [2019] NSWCA 107 Hearing dates: 12 February 2019 Decision date: 14 May 2019 Before: Bathurst CJ at [1]; Gleeson JA at [2]; Sackville AJA at [3]. Decision: (1) Appeal dismissed.

(2) Peak Performance pay PM Works' costs of the appeal. Catchwords: CONTRACTS – construction and interpretation – variation of terms – where parties agreed to jointly provide project management training services to third parties – where appellant provided course materials and issued completion certificates – where client dissatisfied – whether parties agreed to vary their agreement – where first respondent subsequently delivered training courses using its own materials and certification services – whether variation agreement required payment of royalty fee to the appellant in such circumstances – whether first respondent bound to engage appellant to provide certification services

CONTRACTS – breach – where first respondent developed and used its own course materials – whether first respondent breached agreement as varied by not engaging appellant to provide certification services

CONTRACTS – termination – repudiation of contract – where first respondent ceased paying royalty fees to the appellant for courses provided to clients using its own materials and certification services – whether contract was repudiated by conduct – whether primary judge erred in inferring parties' conduct consistent with mutual agreement to terminate their contractual relationship Legislation Cited: Supreme Court Act 1970 (NSW), s 75A(1), (8) Cases Cited: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 343 ALR 58 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Re Golden Key Ltd [2009] EWCA Civ 636 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 Management Service Australia Pty Ltd v PM Works Pty Ltd [2017] NSWSC 1743 Management Services Australia Pty Ltd v PM Works Pty Ltd (No. 2) [2018] NSWSC 336 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 339 ALR 200 Taouk v Assure (NSW) Pty Ltd [2017] NSWCA 227 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2012) 85 ALJR 1 Texts Cited: NC Seddon and RA Bigwood, Cheshire and Fifoot Law of Contract (11th ed, 2017) Category: Principal judgment Parties: Management Services Australia Pty Ltd trading as Peak Performance PM (Appellant) PM Works Pty Ltd (First Respondent) Amit Banerji (Second Respondent) Representation: Counsel: Mr F Assaf SC / Mr PJ Strickland (Appellant) Ms M Cairns / Ms L Hulmes (First and Second Respondents)