J P Morgan Australia Ltd v Consolidated Minerals Pty Ltd [2011] NSWCA 3

"It’s not clear that I have to pay your fees – and you drafted the contract!"

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A client appointed an investment banker to advise on takeovers and mergers.

The contract was formed by an engagement letter from the banker being accepted by the client: [3] The engagement letter entitled the banker to various fees based on different events, offers and payments.

Following a "bidding war" the client became a wholly owned subsidiary of a purchaser: [24]

The banker issued an invoice for $50m. The client objected to it and paid only $20m. The banker sued for the balance, lost, and appealed.

Critical was whether payment for a pre-bid stake in the client was "in connection with" the eventually accepted offer: [50]

If it was, the banker was entitled to a higher fee than if it was not.

The Court found that matters "in connection with" an offer in these circumstances could only arise after the offer, and not before: [52]

The Court took some support for this view from the doctrine of contra proferentem. The banker drafted the term, it gave rise to a large fee, and if it was ambiguous then the banker had no claim to have those doubts resolved in its favour: [54]

The banker's appeal (and the client's contention) were dismissed with no order as to costs: [121], [123]