Hillam v Lewis [2013] NSWCA 360

Hillam v Lewis [2013] NSWCA 360

The appeal succeeded only on the consulting fees issue. The evidence required a finding that Mr Hillam rendered services for 12 months, from October 2008 to September 2009, at the agreed rate of $20,000 per month, and that $70,000 had been paid, leaving $170,000 owing; no separate GST amount was payable. The equity participation grounds failed because Mr Hillam pleaded an unconditional promise, the primary judge found any equity participation was conditional on successful capital raising, it was not open or fair on appeal to decide satisfaction of an undefined condition that had not been pleaded by Mr Hillam, and the challenges to the primary judge's credibility and factual findings did...

Jurisdiction
Australia
Judgment Date
29 October 2013
Procedural Posture
Contract Appeal / Appeal From a Decision of a Judge of the Equity Division Awarding Judgment for Consulting Fees But Dismissing Other Claims
Outcome
Appeal allowed in part; judgment increased from $130,000 to $170,000; appeal otherwise dismissed.
Legal Topics
['construction and Interpretation of Contracts' 'consulting Fees' 'equity Participation Promise' 'conditions Precedent' 'appellate Review of Factual Findings' 'goods and Services Tax']
['contracts' 'civil Procedure'] ['construction and Interpretation of Contracts' 'consulting Fees' 'equity Participation Promise' 'conditions Precedent' 'appellate Review of Factual Findings' 'goods and Services Tax']

Case Brief

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Procedural Posture

Contract Appeal / Appeal From a Decision of a Judge of the Equity Division Awarding Judgment for Consulting Fees But Dismissing Other Claims

Legal Issues

  1. 1 ["Whether the primary judge erred in accepting Mr Lewis's evidence that any 10 per cent equity participation was conditional upon successful capital raising or capital injection." 'Whether the appellant could succeed on appeal by accepting a conditional equity participation agreement and arguing that the condition had been satisfied.' 'Whether the primary judge erred in assessing unpaid consulting fees at $130,000 rather than a greater amount.' 'Whether goods and services tax was payable in addition to the agreed rate of $20,000 per month.' "Whether challenges to the primary judge's credibility and factual findings were made out."]

Ratio Decidendi

The appeal succeeded only on the consulting fees issue. The evidence required a finding that Mr Hillam rendered services for 12 months, from October 2008 to September 2009, at the agreed rate of $20,000 per month, and that $70,000 had been paid, leaving $170,000 owing; no separate GST amount was payable. The equity participation grounds failed because Mr Hillam pleaded an unconditional promise, the primary judge found any equity participation was conditional on successful capital raising, it was not open or fair on appeal to decide satisfaction of an undefined condition that had not been pleaded by Mr Hillam, and the challenges to the primary judge's credibility and factual findings did...

Court Disposition

Appeal allowed in part; judgment increased from $130,000 to $170,000; appeal otherwise dismissed.

Orders

  • ['Appeal allowed in part.' 'Set aside Order 1 made in the Equity Division on 9 August 2012 and order in lieu thereof: "That there be judgment in favour of the plaintiff and against the first, second and third defendants in the sum of $170,000."' 'Appeal otherwise dismissed.' "That the appellant pay 90 per cent of...