Yulema Pty Ltd & Anor v Simmons & Anor [2015] NSWSC 640

Yulema Pty Ltd & Anor v Simmons & Anor [2015] NSWSC 640

The Reynolds-Munt side agreement was formed on terms that, if the 2009 Deed was executed and the Yulema Debt was satisfied in whole or in part, David Roche would pay Yulema one third of the amount so satisfied. The alleged words 'and proceeded with' were not used, and the agreement did not contain the implied term that payment was subject to settlement occurring pursuant to the October 2009 Deed because the term was not shown to be necessary, reasonable and equitable, obvious, or capable of clear expression. The Yulema Debt was wholly satisfied by agreed set off on completion on 6 May 2011, so David Roche's payment obligation arose.

Jurisdiction
Australia
Judgment Date
27 May 2015
Procedural Posture
Contract Proceedings Concerning Construction and Enforcement of an Oral Collateral Contract / Principal Judgment After Hearing
Outcome
Judgment for the first plaintiff Yulema for $347,632.67 plus interest from 6 May 2011; defendants to pay the plaintiffs' costs.
Legal Topics
['construction of Contract' 'oral Collateral Contract' 'express Terms' 'implied Terms' 'set Off by Agreement' 'specific Performance or Damages']
['contract Law' 'equity'] ['construction of Contract' 'oral Collateral Contract' 'express Terms' 'implied Terms' 'set Off by Agreement' 'specific Performance or Damages']

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Procedural Posture

Contract Proceedings Concerning Construction and Enforcement of an Oral Collateral Contract / Principal Judgment After Hearing

Legal Issues

  1. 1 ["What event the parties agreed would trigger David Roche's payment obligation under the Reynolds-Munt side agreement." 'Whether the triggering event had occurred by satisfaction of the Yulema Debt.' 'Whether the oral side agreement included an express term, or alternatively an implied term, that payment was subject to settlement occurring pursuant to the October 2009 Deed.' 'Whether the Yulema Debt was wholly satisfied by set off under the Deed of Acknowledgement and Settlement.']

Ratio Decidendi

The Reynolds-Munt side agreement was formed on terms that, if the 2009 Deed was executed and the Yulema Debt was satisfied in whole or in part, David Roche would pay Yulema one third of the amount so satisfied. The alleged words 'and proceeded with' were not used, and the agreement did not contain the implied term that payment was subject to settlement occurring pursuant to the October 2009 Deed because the term was not shown to be necessary, reasonable and equitable, obvious, or capable of clear expression. The Yulema Debt was wholly satisfied by agreed set off on completion on 6 May 2011, so David Roche's payment obligation arose.

Court Disposition

Judgment for the first plaintiff Yulema for $347,632.67 plus interest from 6 May 2011; defendants to pay the plaintiffs' costs.

Orders

  • ['Judgment for the first plaintiff for $347,632.67 (the judgment sum).' 'Order that there be interest on the judgment sum from 6 May 2011 up to the date of judgment.' "Order the defendants to pay the plaintiffs' costs of these proceedings." 'Leave is granted to approach my Associate within 7 days for any application...