L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 73

L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 73

There was an agreement under which the plaintiff provided professional accounting and business advisory services to the defendants as requested and was remunerated by 10% of the profits of the defendants' business activities, with the parties treating the profits of the Unit Trust as a proxy. That agreement was terminable at will, or at latest on one month's reasonable notice, and ended by 30 April 2013 at the latest. The plaintiff did not prove any contractual entitlement to a share of capital growth or to post-termination profit or capital growth payments because the draft deed was not accepted, the 6 October proposal was not a counter-offer capable of acceptance without more, the...

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Contract Dispute Concerning Accounting and Business Advisory Services in the Equity Commercial List / Principal Judgment Following Hearing; Proceedings Stood Over for Parties to Bring in Orders
Outcome
The plaintiff substantially failed; no entitlement to capital growth or post-termination payments was established. Proceedings were stood over, with dismissal with costs indicated unless the plaintiff sought limited further orders concerning any unpaid profit share up to termination.
Legal Topics
['offer and Acceptance' 'partly Written and Partly Oral Contracts' 'contract Formation' 'uncertainty of Terms' 'post Contractual Conduct' 'termination' 'post Termination Entitlements' 'contracts Review Act Relief']
['contract Law' 'commercial Law' 'contracts Review'] ['offer and Acceptance' 'partly Written and Partly Oral Contracts' 'contract Formation' 'uncertainty of Terms' 'post Contractual Conduct' 'termination' 'post Termination Entitlements' 'contracts Review Act Relief']

Case Brief

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Procedural Posture

Contract Dispute Concerning Accounting and Business Advisory Services in the Equity Commercial List / Principal Judgment Following Hearing; Proceedings Stood Over for Parties to Bring in Orders

Legal Issues

  1. 1 ['Whether there was a concluded agreement and, if so, whether it included post-termination entitlements for the plaintiff from the defendants.' 'Whether there was sufficient certainty in respect of any agreement, including clause 5 of the written document and the parties to the agreement.' 'If the plaintiff established an entitlement to post-termination payments, what remedy was appropriate.' 'Whether the defendants were entitled to relief pursuant to the Contracts Review Act 1980 (NSW).']

Ratio Decidendi

There was an agreement under which the plaintiff provided professional accounting and business advisory services to the defendants as requested and was remunerated by 10% of the profits of the defendants' business activities, with the parties treating the profits of the Unit Trust as a proxy. That agreement was terminable at will, or at latest on one month's reasonable notice, and ended by 30 April 2013 at the latest. The plaintiff did not prove any contractual entitlement to a share of capital growth or to post-termination profit or capital growth payments because the draft deed was not accepted, the 6 October proposal was not a counter-offer capable of acceptance without more, the...

Court Disposition

The plaintiff substantially failed; no entitlement to capital growth or post-termination payments was established. Proceedings were stood over, with dismissal with costs indicated unless the plaintiff sought limited further orders concerning any unpaid profit share up to termination.

Orders

  • ['The proceedings are stood over until 10:00am on 3 March 2017.' 'By 27 February 2017 the plaintiff is to notify the defendants and the Associate of any further orders, beyond dismissal with costs, that it seeks.']