Makeig v Batterham [2009] NSWSC 344

Makeig v Batterham [2009] NSWSC 344

The Kitchener Project Agreement constituted a binding and enforceable contract between Mr Makeig and the Batterhams, with implied duties of co-operation. The Batterhams' repudiation via termination letter constituted wrongful termination and amounted to breach of contract and breach of fiduciary obligation. Mr Makeig is entitled to damages for loss of opportunity or a constructive trust over 7/18ths of net profits from the project (after $1.5 million deduction). Misleading conduct by Mr Makeig did not induce entry into the contract nor cause loss to the defendants.

Parties
Plaintiff: Peter John Makeig; First Defendant: Brian Batterham; Second Defendant: Batterham's Bus Lines Pty Limited
Jurisdiction
Australia
Judgment Date
01 May 2009
Procedural Posture
Civil / Final Judgment
Outcome
For Plaintiff: Damages or declaration of constructive trust; cross-claim dismissed.
Legal Topics
Offer and Acceptance, Contractual Intention, Consideration, Estoppel, Fiduciary Duty, Breach of Contract, Repudiation, Damages, Constructive Trust, Equitable Lien
Contracts Equity Misleading and Deceptive Conduct Partnership Offer and Acceptance Contractual Intention Consideration Estoppel +6 more

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Parties

Peter John Makeig

Plaintiff

Brian Batterham

First Defendant

Batterham's Bus Lines Pty Limited

Second Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether the Kitchener Project Agreement is binding
  2. 2 Whether the defendants are estopped from denying a binding contract
  3. 3 Whether either party breached or repudiated the Agreement

Ratio Decidendi

The Kitchener Project Agreement constituted a binding and enforceable contract between Mr Makeig and the Batterhams, with implied duties of co-operation. The Batterhams' repudiation via termination letter constituted wrongful termination and amounted to breach of contract and breach of fiduciary obligation. Mr Makeig is entitled to damages for loss of opportunity or a constructive trust over 7/18ths of net profits from the project (after $1.5 million deduction). Misleading conduct by Mr Makeig did not induce entry into the contract nor cause loss to the defendants.

Court Disposition

For Plaintiff: Damages or declaration of constructive trust; cross-claim dismissed.

Orders

  • Plaintiff may elect between damages of $2,081,309 or declaration that first defendant holds 7/18ths of net profits above $1.5 million from the JPG Deed on constructive trust for plaintiff.
  • Cross-claim dismissed.