White v Philips Electronics [2019] NSWCA 115

“Get it in writing!”   

Relying on a conversation to vary a contract has its challenges, especially after you’ve gone down at first instance.  Party A provided services to Party B – a company – pursuant to a contract. Party C guaranteed Party B’s contractual obligations.  

Party B failed to pay the fees owed pursuant to the contract. Party A sued for the fees and won. But by the time of that victory, Party B had gone into liquidation. This left Party C and another guarantor “on the hook” for the judgment debt.  

Party C appealed, saying the judge erred in her finding of what was said in a meeting, and the effect of it. Party C argued that a conversation had changed the contract despite the “entire agreement” clause.  To get up, Party C would need to show that the findings made by the judge were “glaringly improbable”: [44].  He failed.  

On Appeal the Court found that the first instance judge was “entirely correct”: [47]. Party C’s suggestion of what happened was “inherently implausible” ([48]).  Perhaps clearly, the Appeal Court was not satisfied that the finding of the first instance judge were “glaringly improbable”: [51] and [69].  Victory for Party A then. 

And, pursuant to a clause in the (unamended) contract, legal costs on the more generous solicitor/client basis.