ACT Cross Country Club Advice
We reported in a recent letter to members that the dispute between Cundy Sports Marketing (CSM) and the Club had involved the Club making an offer to CSM in February to settle out of Court. Whilst CSM accepted the offer unconditionally on 1 March they then walked away from that offer on 15 March. As a consequence we took action against CSM for breach of contract. The hearing of the case of repudiation of the agreement was heard on 2 July in Sydney with the judgment was announced by Justice Perram on 23 July.
Unfortunately Justice Perram found in favor of CSM and awarded costs against us. The basis for Justice Perram’s decision was that on the day of settlement the Club had a responsibility to ensure that CSM received the benefit of the settlement and to ensure that this happened the Club had an obligation to advise the ACT Government in writing that the matter was settled.
While we had informed the ACT Government that an offer had been made and accepted we were not able to say that the Court action had been withdrawn from the Court until both parties signed appropriate documents and submitted them to the Court. The ACT Government had made it clear in correspondence to both parties and in a media release by the Chief Minister that road closure approvals would not be given until the dispute was settled and no longer before the Court. Hence advice to the ACT Government in writing indicating that the dispute had been settled would have been useless unless it was accompanied by proof that the matter was no longer before the Court.
CSM’s lawyers have been asked to assess the costs. We can only guess at this stage what that might be but it may be as much as $60,000 to $80,000. Clearly the Club is unable to pay costs of this order as members would know from our recent letter to you. It is possible that CSM may choose to waive costs. If they don’t then it’s also possible that they may choose to appoint a liquidator thus forcing the Club to wind up. We have today written to CSM’s lawyers seeking advice on these matters.
The other more substantive Court case (i.e. CSM’s action against the Club under the Trade Practices Act) is still continuing in the Federal Court. The Club is clearly not in a position to continue with this matter if it can’t pay costs on the above matter. One of the implications is that CSM may acquire by default the intellectual property relating to the Canberra Marathon. This means that the Club will no longer have any association or involvement with an event called the Canberra Marathon.
The Committee is currently examining the full implication of the Court judgment & will be taking steps to ensure that the Canberra running community receives the same level of activities as has been provided by the Club for almost 50 years. In terms of marathons we are planning a running festival in 2011 which will again incorporate a marathon on the same course as used this year. We will keep members advised of further developments.