O'Doherty v T G Eakin Ltd & Anor [2004] NSWCA 38

O'Doherty v T G Eakin Ltd & Anor [2004] NSWCA 38

The appellant failed to establish entitlement to the claimed expenses, commission or $150,000 payment because he had not substantially complied with his obligations and had not accounted to the respondent for substantial sales monies. The respondent's recovery for monies owing was to be reduced to avoid double compensation by taking into account the Bank's $100,000 settlement payment, less an allowance of $5,000 for costs, leaving judgment for the respondent in $49,340.81.

Jurisdiction
Australia
Judgment Date
03 March 2004
Procedural Posture
Contract Appeal and Cross Appeal / New South Wales Court of Appeal Judgment From a District Court Decision of Certoma DCJ
Outcome
Appeal and cross appeal dismissed; judgment amount varied to $49,340.81 with interest directions; appellant to pay the respondents' costs of the appeal.
Legal Topics
['agency Agreement' 'termination Agreement' 'construction of Contract' 'commission' 'expenses' 'entire Contract' 'settlement With Third Party' 'double Compensation']
['contract' 'damages'] ['agency Agreement' 'termination Agreement' 'construction of Contract' 'commission' 'expenses' 'entire Contract' 'settlement With Third Party' 'double Compensation']

Case Brief

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Procedural Posture

Contract Appeal and Cross Appeal / New South Wales Court of Appeal Judgment From a District Court Decision of Certoma DCJ

Legal Issues

  1. 1 ['Whether the appellant was entitled to $5,500 for expenses.' 'Whether the appellant was entitled to $54,461.51 as commission under the termination agreement.' 'Whether the appellant was entitled to $150,000 under paragraph 10 of the termination agreement.' 'Whether the amount owing by the appellant to the respondent should be reduced by $100,000 or any part of that sum because of the settlement of the cross-claim against the Bank.' 'Whether the respondent established breach of paragraph 3 of the termination agreement by alleged detrimental comment or innuendo.' 'Whether the respondent was entitled to rely on rescission of the termination agreement.']

Ratio Decidendi

The appellant failed to establish entitlement to the claimed expenses, commission or $150,000 payment because he had not substantially complied with his obligations and had not accounted to the respondent for substantial sales monies. The respondent's recovery for monies owing was to be reduced to avoid double compensation by taking into account the Bank's $100,000 settlement payment, less an allowance of $5,000 for costs, leaving judgment for the respondent in $49,340.81.

Court Disposition

Appeal and cross appeal dismissed; judgment amount varied to $49,340.81 with interest directions; appellant to pay the respondents' costs of the appeal.

Orders

  • ["The appellant's appeal is dismissed." "The respondent's cross appeal is dismissed." 'Otherwise than with respect to the order for costs the order of the learned trial judge be set aside and in lieu thereof judgment be entered for the respondent in an amount of $49,340.81.' 'The appellant is to pay the respondent...