L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 73. McDougall J. The Supreme Court has dismissed
Judgment Summary Supreme Court New South Wales
L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 73 McDougall J The Supreme Court has dismissed proceedings brought by L.N.E Cunneen & Co Pty Ltd (Cunneen) against two hoteliers, Mr Allan Vincent Blackburn and Mrs Carmel Anne Blackburn, regarding a contract for accounting and business advisory services. Cunneen is the trading entity of Mr Leigh Cunneen, an accountant. Mr Cunneen provided services to Mr and Mrs Cunneen from about October 2009 to the first half of 2013. Mr Cunneen said that the contract included remuneration for his services by a 10% share of profits made by Mr and Mrs Blackburn from their businesses and by a 10% share of the growth in capital value of the assets of those businesses, and that those entitlements continued, despite termination, until one party elected to bring them to an end. Mr Cunneen said that the contract was formed by a Draft Deed, which he said he had provided in August 2010, a Proposal provided by Mr and Mrs Blackburn, which he said he had expressly accepted, in October 2010, and the parties’ subsequent conduct, such as calculations and payments of a 10% profit share and email exchanges where Mr Cunneen referred to the contract. Mr and Mrs Blackburn denied that such a contract exists. On their account, Mr Cunneen did not provide them with a copy of the Draft Deed in August, although at some point he did show them a draft document. In addition, Mr Cunneen did not accept the Proposal provided by them in October. Mr and Mrs Blackburn contended that any contract that did exist between the parties did not include the terms in Mr Cunneen’s Draft Deed and did not include a 10% share of the growth in capital value of the assets or entitlements that continued following termination of the contract. The main issue was whether there was a concluded agreement and if so what were its terms. The Court had to determine whether the terms included an entitlement to share in profit, whether they included an entitlement to share in capital growth, whether any such entitlements continued following termination of the contract, and if so, until when. The Court found that both the Draft Deed and the Proposal were discussion documents intended to lead to a contract. Even if either document had constituted an offer capable of acceptance, the conduct of both parties demonstrated that there was no concluded agreement including these terms.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
