Herrod v Johnston [2012] QCA 360


CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where parties to the proceedings are siblings and deceased was their father – where deceased in a cattle property partnership with first and second defendants – where deceased‘s interest in partnership and residue was left to third appellant and respondents in equal shares – where there were meetings in which discussions took place with respect to the respondents assigning their interest in partnership to first and second appellants for monetary sum – where first respondent signed agreement to this effect but second respondent did not – where partnership agreement provided for an option to purchase share of partnership – where partnership agreement provided for the giving of notice when exercising option – where appellant submitted primary judge erred in law in finding that the first and second appellants had not validly exercised option because the notice of exercise of option was not given in accordance with partnership agreement – where appellants submitted primary judge erred in law in declaring that an oral agreement entered into by the second respondent was unenforceable and ought to be set aside and concluding that no legally binding agreement had been made – whether option validly exercised – whether legally binding and enforceable agreement created with second respondent

EQUITY – EQUITABLE REMEDIES – GENERALLY – where primary judge concluded that respondents entitled to award of equitable compensation – where appellants submitted primary judge erred in declaring that respondents each entitled to elect to have an account of profits which accrued to the appellants by reason of their breach of duty or equitable compensation of $433,709.67 after allowing compound interest on the basis that the first and second appellants made the most profitable use of the shares of the deceased in the partnership – whether primary judge erred in making such declaration where appellants identified delay on the part of the respondents with respect to, inter alia, the institution and trial of proceedings – where appellant submitted respondents should be denied equitable relief on account of delay – whether such relief should be denied

APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE‘S FINDING OF FACT – PROOF AND EVIDENCE – where primary judge found value of herd to be $1,214,370 – where primary judge made findings with respect to the value of the partnership plant and equipment – where appellants submitted the partnership had debt of $62,000 at the time of the deceased‘s death and that this was a liability that had to be taken into account when determining the value of the deceased‘s partnership share – where primary judge found that there was no acceptable evidence that debt was subsisting as at the date of the death of the deceased – where appellants submitted these findings were erroneous – whether valuation with respect to herd accurate – whether findings with respect to partnership plant and equipment erroneous – whether finding with respect to debt erroneous where appellant‘s alleged first respondent‘s daughter typed a document which reflected the agreement entered into between the first respondent and the appellants with respect to purchasing her interest in the partnership – where first respondent‘s daughter was not called to give evidence – where appellant‘s submitted primary judge erred in not drawing an inference adverse to respondents from their failure to call the first respondent‘s daughter as a witness – whether primary judge erred in not drawing inference.



David Cormack – Brisbane Barrister.

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