White v Philips Electronics Australia Ltd t/as Philips Healthcare [2019] NSWCA 115

White v Philips Electronics Australia Ltd t/as Philips Healthcare [2019] NSWCA 115

The appeal failed because the primary judge's rejection of Mr White's account of the 19 November 2014 meeting was open and not shown to be wrong by incontrovertible facts, uncontested testimony, glaring improbability or compelling inferences. The alleged variation or cancellation was commercially implausible, uncertain, inconsistent with Mr White's pleaded case and evidence, unsupported by subsequent events, and contradicted by the accepted evidence of Mr Damen. Because the factual challenge failed, it was unnecessary to decide whether cl 18 conclusively precluded an oral variation. Costs were awarded on a solicitor/client basis pursuant to cl 6 of the Contract.

Jurisdiction
Australia
Judgment Date
17 May 2019
Procedural Posture
Contract Appeal / Appeal to the Court of Appeal From a District Court Civil Decision of Olsson DCJ Dated 20 July 2018
Outcome
Appeal dismissed with costs; costs awarded on a solicitor/client basis.
Legal Topics
['alleged Oral Variation of Contract' 'no Oral Modification Clause' 'guarantee' 'challenge to Findings of Fact' 'credibility Findings' 'costs on Solicitor/client Basis']
['contract Law' 'civil Procedure' 'appellate Procedure'] ['alleged Oral Variation of Contract' 'no Oral Modification Clause' 'guarantee' 'challenge to Findings of Fact' 'credibility Findings' 'costs on Solicitor/client Basis']

Case Brief

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Procedural Posture

Contract Appeal / Appeal to the Court of Appeal From a District Court Civil Decision of Olsson DCJ Dated 20 July 2018

Legal Issues

  1. 1 ["Whether the primary judge erred in rejecting Mr White's evidence that the Contract was orally varied or cancelled at the 19 November 2014 meeting." 'Whether the alleged oral variation was sufficiently certain and intended to be legally binding.' 'Whether the appellant displaced adverse factual and credibility findings by incontrovertible facts, uncontested testimony, glaring improbability or compelling inferences.' 'Whether costs should be awarded on a solicitor/client basis under cl 6 of the Contract.']

Ratio Decidendi

The appeal failed because the primary judge's rejection of Mr White's account of the 19 November 2014 meeting was open and not shown to be wrong by incontrovertible facts, uncontested testimony, glaring improbability or compelling inferences. The alleged variation or cancellation was commercially implausible, uncertain, inconsistent with Mr White's pleaded case and evidence, unsupported by subsequent events, and contradicted by the accepted evidence of Mr Damen. Because the factual challenge failed, it was unnecessary to decide whether cl 18 conclusively precluded an oral variation. Costs were awarded on a solicitor/client basis pursuant to cl 6 of the Contract.

Court Disposition

Appeal dismissed with costs; costs awarded on a solicitor/client basis.

Orders

  • ['Appeal dismissed with costs.' 'Costs awarded on a solicitor/client basis.']