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Cases (2019)

Here you will find links to new decisions relating to competition and consumer law and associated catchwords. Significant cases will also be added to the main cases page. The list does not purport to be comprehensive and focusses on decisions of supreme courts and the federal court, largely omitting decisions of tribunals and commissions relating to contract or consumer law.

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2019 (Contract) (jurisdiction | chronological)

Federal | ACT | NSW | Qld | NT | SA | Tas | Vic | WA

Cases are sorted by jurisdiction in court and within each court appear in reverse chronological order

Federal Court of Australia

Full Federal Court

External link Hill v Forteng Pty Ltd [2019] FCAFC 105
Justices Kerr, Bromwich and Wheelahan (21 June 2019)
Appeal from: Hill v Forteng Pty Ltd [2018] FCA 1501 and Hill v Forteng Pty Ltd [2019] FCA 82

Catchwords

CONTRACTS – where directors of company, including the appellant, agreed to receive reduced remuneration as employees – whether company gave consideration – whether agreements to vary the original contract were void for uncertainty – held: appeal against orders on breach of contract dismissed  

COSTS – where primary judge did not separate costs on issues and ordered the appellant pay the respondents’ costs on an indemnity basis from date of first Calderbank offer – held: appeal against costs orders allowed in part  

External link Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
Justices Greenwood, Logan and Derrington (8 February 2019)

Catchwords

INDUSTRIAL LAW ...

CONTRACTS – cross claim – whether payment to applicant was a loan or advance – whether payment was a discretionary bonus.

COMPENSATION – claim for loss of opportunity to work for first respondent – whether employment would have continued - claim for loss of opportunity to work at former employer – claim of non-economic loss for hurt and humiliation - whether post dismissal actions of employer are relevant to compensation.

Federal Court

External link Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited [2019] FCA 1049
Justice White (5 July 2019)

Catchwords

CONTRACTS – Applicant contracted with the Respondents to construct an access road to a remote mine site – various matters led to the incurring of additional costs and to construction delays – claim for damages for breach of contract - claim for payment of the time-related costs incurred by the Applicant in respect of additional work – claim for other consequences of the additional time taken and the additional work – claim for payment of variations.

Held: claim for the time-related costs fails but other aspects of the breach of contract claim succeed in part.

CONSUMER LAW – claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – claim that in entering into the contract the Applicant relied on four representations made by the Respondents which were misleading or deceptive – claim that if the representations had not been made the Applicant would not have entered into the contract at all or, alternatively, would have entered into a contract on schedule of rates terms which assigned the risk and cost of additional work and delay to the Respondents – Applicant did not prove that the representations were made or that they were misleading or deceptive – Applicant did not prove that it relied on the pleaded representations in entering into the contract – Applicant did not establish loss by reason of the alleged misleading or deceptive conduct.

Held: contraventions of s 18 of the ACL not made out.

External link Lucas v Zomay Holdings Pty Ltd [2019] FCA 830
Justice O'Callaghan (4 June 2019)

Catchwords

CONTRACTS – applicant seeks specific performance of contract – “fourth category” of Masters v Cameron (1954) 91 CLR 353 – allegation of repudiation

CONSUMER LAW - misleading and deceptive conduct

External link F.Y.D. Investments Pty Ltd v Promptair Pty Ltd (No 2) [2019] FCA 419
Justice White (26 March 2019)

Catchwords

CONTRACTS – claim for a debt arising pursuant to the terms a contract – Applicants the owner and builder of a commercial building – Respondent the mechanical services contractor contracted to supply and install air conditioning equipment – Respondent supplied Air Handling Units (AHUs) which had not been approved by the Applicants’ engineer and which did not provide the “Air Off” temperature required – Applicants issued a Notice of Default and removed the work from the Respondent’s hands – claim in debt arising from contract.

Held: Notice of Default was ineffective as it included a direction by the Applicants to the Respondent to do acts which had not been required of it under the contract.

CONTRACT – claim for damages for breach of contract – the contract required that the Respondent install only AHUs which had been approved and which produced Air Off temperatures of 10°C – claim that the Respondent supplied non-approved and non-complying AHUs.

Held: breaches of contract established.

CONSUMER LAW – claim that the Respondent engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law by failing to disclose, when submitting progress payment claims, that the AHUs it had installed were not from the approved manufacturer – claim that Promptair implicitly represented that it had properly performed part of the contract.

Held: misleading or deceptive conduct claim established.

...

Australian Capital Territory

Supreme Court

External link Australian Capital Territory v BJM Canberra Pty Ltd
Burns J (12 November 2019)

Catchwords

CONTRACT – INTERPRETATION – Whether a clause of a deed permits a developer to charge for car parking required to be provided to ACT Policing – standing of the Australian Capital Territory – whether utility in granting relief – declaration made

External link CTOG Pty Ltd v Turcic [2018] ACTSC 361
Burns J (12 November 2018)

Catchwords

CONTRACT LAW – EMPLOYMENT CONTRACT – Restraint of Trade Clause – Application for an interlocutory injunction – whether the plaintiff could demonstrate a legitimate protectable interest – whether damages would be an adequate remedy

Magistrates' Court

External link Da Vesi Construction Group Pty Ltd (ACN 122 278 735) v Rubie De Andrade [2019] ACTMC 1
Magistrate Fryar (24 January 2019)

Catchwords

CONTRACT – Breach of contract – form of contract disputed – dispute in relation to amount paid for services.

PROCESS AND PROCEDURE – Failure to call relevant witnesses.

PLEADINGS – Issues raised at hearing not specifically pleaded.

New South Wales

NSW Supreme Court (Court of Appeal)

External link Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd [2019] NSWCA 60
Bell P, White JA, Sackville AJA (29 March 2019) (leave to appeal granted)

Catchwords

BUILDING AND CONSTRUCTION – statutory debt ... CONTRACTS – purported termination – whether purported termination precluded by election to affirm contract

CORPORATIONS – creditor’s statutory demand ...

External link Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) [2019] NSWCA 53
Leeming JA, Sackville AJA, Emmett AJA (appeal allowed)

Catchwords

CONTRACT – construction – conflict between contractual powers – conditional contract for sale of land – vendor had right to rescind if conditions precedent not satisfied – contract amended so as to confer right upon purchaser to "step-in" to attempt to achieve satisfaction of conditions precedent – whether vendor’s contractual right qualified by purchaser’s right

CONTRACT – frustration – conditional contract for sale of land – land contaminated – whether amendment to State Environmental Planning Policy preventing subdivision until remediation conditions satisfied amounted to frustration

External link RHG Mortgage Corporation Ltd v Summerfield [2019] NSWCA 44
Bathurst CJ, Gleeson JA, Brereton JA (14 March 2019) (appeal dismissed with costs)
(Bathurst CJ and Gleeson JA agreed with Brereton JA)

Catchwords

MORTGAGES AND SECURITIES ...

CONTRACTS – terms – construction – whether "condition" was a condition of retaining possession or a contractual obligation.

EVIDENCE – proof ...

External link Bega v Lauvan Pty Ltd [2019] NSWCA 36
Meagher JA, Leeming JA, White JA (28 February 2019) (appeal dismissed with costs)
(Meagher and White JA agreed with Leeming JA)

Catchwords

AGENCY – actual authority – ostensible authority – facility agreement – no drawdown notice given – whether borrower’s husband had actual authority to request drawdown – whether husband’s associate had ostensible authority to request advance – whether written authorisation required

CONTRACT – condition precedent – appellant entered into facility agreement with respondents – agreement required borrower to provide drawdown notice to lenders – no drawdown notice given – whether obligation to provide drawdown notice capable of being waived by lenders

External link Campbell v Hamilton [2019] NSWCA 22
Beazley P, Gleeson JA and White JA (25 February 2019) (appeal allowed in part)

Catchwords

LAND LAW — Easements — ...

LAND LAW — Easements — Construction of deed providing for grant of easement — Extrinsic evidence — Whether extrinsic evidence not admissible to construe a registered instrument granting easement can be used to construe deed

CONTRACTS — Remedies — Specific performance — Whether appellant agreed to grant easement — Meaning of “easement”

External link Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24
Bathurst CJ, Beasley P, Macfarlan JA (22 February 2019) (appeal dismissed with costs (joint judgment))

Catchwords

REAL PROPERTY – whether appeal futile in circumstances where respondent is registered proprietor of land – whether contractual right to lodge caveat created an equitable interest in favour of appellant

CONTRACTS – formation – whether parties entered into contract for sale of land – form of contract entered into

External link Sanpoint Pty Ltd v V8 Supercars Holding Pty Ltd [2019] NSWCA 5
Beazley P, Macfarlan JA and Leeming JA (7 February 2019)
Appeal from: V8 Supercars Holdings Pty Ld v Sanpoint Pty Ltd [2017] NSWSC 1043

Catchwords

CONTRACTS — Construction — Interpretation — whether primary judged erred in construction of commercial contract — whether respondent undertaking contractually required tender process was required to disclose status of ongoing negotiations with a third party to appellant — standard of disclosure and relevant time of disclosure required by contract

CONTRACTS — Breach of contract — Standards of contractual duty — whether primary judge erred in finding no breach of commercial contract by respondent — whether contract correctly construed required respondent to disclose to appellant status of third party negotiations during due diligence period — whether respondent breached contractual requirement to disclose

CONTRACTS — Remedies — Damages — Loss of chance — whether respondent’s failure to disclose to appellant an offer made by third party caused the appellant to lose a chance to sell its rights under a contract at a substantially higher price

CORPORATIONS — Directors and officers — Disclosure requirements — where there are common directors of two companies – whether knowledge acquired by one director in course of acting for one company will be imputed to the second company

External link Kai Ling (Australia) Pty Ltd v Rosengreen [2019] NSWCA 3
Basten JA, Sackville AJA, Barrett AJA (5 February 2019)

Catchwords

CONTRACTS – formation – novation – requirements for effective novation of contract by substitution of party – whether option to purchase land novated in favour of substituted grantee

NSW Supreme Court

External link New Hope Corporation Ltd v Northern Energy Corporation Ltd (administrators appointed) [2019] NSWSC 879
Stevenson J (12 July 2019)

Catchwords

CONTRACTS – construction – whether parties to a Deed of Cross Guarantee guaranteed the obligations of entities named in Part 1(3) of the Schedule to the Deed

CONTRACTS – rectification – whether the Deed should be rectified by deleting the names of the entities named in Part 1(3) of the Schedule to the Deed – whether clear and convincing evidence of a common intention inconsistent with the words used in the Deed

External link Luo v Windy Hills Australian Game Meats Pty Ltd (No 3) [2019] NSWSC 862
Stevenson J (10 July 2019)

Catchwords

CONTRACTS – breach of contract – consequences of breach – right to damages – contract for sale of goods – goods never delivered – total failure of consideration – defendant vendor defrauded by third party supplier – defendant vendor nonetheless liable to plaintiff purchaser

CONTRACTS – misleading conduct under statute – misleading or deceptive conduct – representations – defendant falsely represented it had a present ability to supply beef omasum – plaintiff paid contract sum in reliance – containers of packing salt delivered

EQUITY – trusts and trustees – resulting trusts – Quistclose trusts – no Quistclose trust established where no mutual intention that plaintiff’s money would not become part of the first defendant’s assets

External link McLeod v McLeod [2019] NSWSC 804
Fagan J (5 July 2019)

Catchwords

MORTGAGES AND SECURITIES —...

CONTRACTS — formation — consideration — adequacy of consideration – whether contract unjust for purposes of s 9(1) of the Contracts Review Act – whether representations gave rise to promissory estoppel – defendant not induced by representations or conduct and suffered no detriment by reliance – no relief granted – litigated with exhaustive attention to wide range of factual and legal questions – view formed on sufficient issues to permit disposition – wasteful of court resources for further analysis of plaintiff’s alternative case

External link Ayers Rock SkyShip Pty Ltd v Voyages Indigenous Tourism Australia Pty Ltd [2019] NSWSC 828
Darke J (4 July 2019)

Catchwords

CONTRACTS – construction – defendant operates a resort on land near Uluru in the Northern Territory – plaintiff proposed to establish a “Sky Ship” business involving the provision of rides in a gondola of a tethered helium balloon – parties entered into three interrelated agreements being an Operator Agreement and two leases – where the tethered helium balloon was subsequently destroyed by high cross winds – plaintiff unable to continue to operate the balloon – where the defendant issued notices of breach and notices to terminate the three agreements – whether the plaintiff was in breach of cl 4.1 of the Operator Agreement by failing to conduct the Business in accordance with the terms of the Operator Agreement during Normal Business Hours throughout the Term – plaintiff held to be in breach of the Operator Agreement – defendant entitled to terminate the Operator Agreement and the two leases – defendant entitled to declarations that the three agreements have been terminated

EQUITY – equitable remedies – relief against forfeiture – special heads of fraud, accident, mistake or surprise – whether the doctrine of relief against forfeiture applies to the Operator Agreement – whether the destruction of the tethered helium balloon was an “accident” in the relevant sense – where the destruction of the tethered helium balloon was an event within the reasonable contemplation of the parties – where the defendant did not cause or contribute to the breach giving rise to the right to terminate the Operator Agreement – not unconscientious for the defendant to insist upon its strict legal rights

External link Wyse & Young International Pty Limited v Sanna (No 2) [2019] NSWSC 868
Brereton J (3 July 2019)

Catchwords

CONTRACTS – unjust contracts – s 7, Contracts Review Act – entitlement to relief

 

COSTS – whether to set off against other judgments – security for costs – where not all plaintiffs successful

 

JURISDICTION – cross-vesting – application for transfer to Federal Court – whether ‘special federal matter’

PROCEDURE – s 500(2), Corporations Act – leave to proceed against company in voluntary winding up

External link Lui v Guan; Sun Link Group Pty Ltd v Lui [2019] NSWSC 803
Walton J (28 June 2019)

Catchwords

BREACH OF CONTRACT – written agreement – parties to agreement – construction of terms of agreement – principles of construction – objective surrounding circumstances – object and purpose of the agreement – whether obligations performed under the agreement – whether breach of agreement – claim for damages – payment of fee – damages regarding the vehicle – relief as to the vehicle and interest and costs subject to further directions 
  
CIVIL PROCEEDINGS – ...
  
EVIDENCE – ...

External link Nova 96.9 Pty Ltd v Natvia Pty Ltd [2019] NSWSC 791
Black J (26 June 2019)

Catchwords

CONTRACT – breach of contract – damages.

External link Playup Australia Pty Ltd v Kay [2019] NSWSC 771
Stevenson J (25 June 2019)

Catchwords

CONTRACTS – construction and interpretation – share sale agreement – whether the purchaser’s obligation to make deferred payments dependent on seller’s obligation to ensure adjustments made on completion – where parties agreed time was of the essence in relation to the purchaser’s obligation to make the deferred payments – whether parties agreed that the “Date of Completion” was a different date to “Completion” – whether seller no longer bound by restraints and warranties in the agreement

EQUITY – equitable remedies – relief against penalties – clause in share sale agreement provided that restraints and warranties made by defendant are void if payment not made within seven days of due date – whether that clause is a penalty and unenforceable

EQUITY – equitable remedies – relief against forfeiture – non-proprietary rights in the form of restraints and warranties conferred by agreement – whether purchaser should have relief against forfeiture of those rights

External link Griffiths as trustee for the Griffiths HWL Practice Trust v Martinez as trustee for the Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers [2019] NSWSC 664
Robb J (6 June 2019)

Catchwords

CONTRACTS — Construction — Principles of interpretation relating to construction of partnership deed — Additional requirements for partners to vary constituent documents — Whether variation effected by consent within the meaning of s 19 of the Partnership Act 1892 (NSW), including by a course of dealing over time — Requirement for unanimity under s 19 — Whether non-voting partners are included in this requirement

CONTRACTS — Termination — Repudiation of contract — Whether termination effective — Reliance on information acquired after the date of termination in order to justify same — Such justification must in fact be available at the time of what would otherwise be a repudiation

CONTRACTS — Remedies — Damages — After repudiation — Past and future losses — Proper calculation of damages where individual was already serving notice period prior to repudiation — Complicating factor of termination on notice itself not effective

CONTRACTS — Remedies — Damages — After repudiation — Loss of chance — Principles governing damages for loss of chance to gain other employment while still a partner

INTERPRETATION — General rules of construction — Interpretation of resolutions of members of an organisation — Proper construction of resolution of partners bound by a partnership deed to vary that deed

EMPLOYMENT LAW ...

PARTNERSHIP ...

EVIDENCE ...

ESTOPPEL - Estoppel by convention — Mutual assumption — Course of dealing — Impact of a party not promptly demanding performance of its contractual rights

External link Combined Property Consultants Pty Ltd v Mitchell [2019] NSWSC 652
Parker J (6 June 2019)

Catchwords

CONTRACTS — Identification of terms – whether terms and conditions of written agreement form part of contract in fact reached – where clear agreement between the parties that agency agreement be “sole” rather than “exclusive” - where “exclusive” struck out and “sole” written and changes initialled – where parties did not turn their minds to further terms and conditions of written agreement which became inapposite to the “exclusive” agency agreement reached – relevance of parol evidence rule - party may prove there was in fact no agreement on particular term within an apparently complete written agreement.

CONTRACTS — Rectification — Intention — Common intention – rectification appropriate where clear mistake - parties did not avert to inclusion of term which was inapposite to their agreement – rectification appropriate to delete “exclusive” or read “exclusive” as “sole”.

CONTRACTS — Construction — Interpretation - where option agreement provided for exercise of option by party or its nominee – whether purchase by exercise of option a “purchase” within meaning of agency contract so as to make the commission payable – where clause equating exercise of option with purchase appropriately excluded by construction or rectification – proper juridical analysis of an option – whether service of notice per contractual procedure brought about “purchase” within meaning of contract to make commission payable – where agency contract must be interpreted in a commercially sensible way – party exercising option cannot be seen as a “purchaser” as agency contract premised on voluntary transaction – commission not payable.

CONTRACTS — Construction — Interpretation - Natural and ordinary meaning - where contract specifically required agent to introduce purchaser to vendor during agency period – whether “introduced” extends to bringing purchaser “into contact” with vendor during period of agreement notwithstanding that initial contact occurred prior to agency period – purchaser not “introduced” to vendor during agency period as natural implication of “introduced” is that an introduction can only happen once and alternate construction would render term meaningless.

CONTRACTS —Termination — Frustration - whether agency contract frustrated where sale did not take place by way of fresh contract following release of option – where common assumption not expressed in terms of agency agreement but discerned from relevant surrounding circumstances subject matter of contract may be expressed as sale of property free from option - where agent aware of purchaser’s sole interest to proceed by way of fresh contract for sale excluding option - where terms of agency agreement reflected common assumption – where agent would have no authority to sell property absent release of the option - agency contract deprived of continuing legal effect when option not released.

Legislation cited

Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 21, 237(1) and 243.

Property Stock and Business Agents Act 2002 (NSW), s 55.

External link Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWSC 335
Justice Henry (29 March 2019)

Catchwords

CONTRACTS – formation – agreement – intention to make concluded bargain – formal lease not executed or exchanged – where heads of agreement signed, tenant already in possession and parties negotiating the terms of a formal lease through solicitors – held no intent to be bound in the absence of a formal executed lease

LEASES AND TENANCIES – formal requirements – agreements for lease – creation of relationship by payment of rent – retail and commercial tenancies legislation – Conveyancing Act s 127 – Retail Leases Act ss 3, 8, 16, 18

External link Francis Gregory Hannigan v Inghams Enterprises Pty Limited [2019] NSWSC 321
Justice Robb (29 March 2019)

Catchwords

CONTRACTS — Formation — Acceptance of offer — Acceptance by conduct — Principles applicable – Where the parties initially intended that contractual document would be signed by both parties if acceptable – Where the parties did not sign the contractual document – Where the parties acted over a significant period as if they were bound by the detailed provisions of the contractual document – Whether contract entered into by conduct of both parties in the absence of formal offer and acceptance

CONTRACTS — Termination — Whether the defendant was entitled to terminate the contract under the terms of the contract or for breach of the contract by the plaintiff – Breach by terminating party — Whether termination effective in circumstances where the party asserting a right to terminate is also in default, and where that default contributed to the breach by the other party — Principles relating to novus actus interveniens

CONTRACTS — Terms — Classification of terms — Fundamental breaches of contract — Breaches of fundamental or essential terms

CONTRACTS — Construction — Interpretation — Meaning of “negligence” in a particular contractual context

EVIDENCE — Burden of proof — ...

External link Kumar v Satsang Hindu Maha Sabha of NSW Incorporated (No 2) [2019] NSWSC 325
Justice Kunc (26 March 2019) (amended summons dismissed with costs)

Catchwords

CONTRACTS — Construction — Interpretation — Agreement to settle proceedings — Not for Court to review application of principles of Hindu religion

External link Personnel Concepts WA Pty Limited v Adam & Ors, t/as Marsdens Law Group [2019] NSWSC 301
Justice Wright (22 March 2019)

Catchwords

CONTRACTS – formation – acceptance of offer – knowledge of offer – terms contained in attachment to email – whether terms brought to attention of offeree – whether a legally binding agreement giving rise to an obligation to make payments alleged to be owing under the agreement – acceptance cannot occur if offeree is ignorant of the offer

External link Cincotta v Russo [2019] NSWSC 272
Justice Stevenson (15 March 2019)

Catchwords

CONTRACTS – particular parties – principal and agent – undisclosed principal – building contract – where licensed supervisor contracted as agent for builder – identity of contracting parties – agent personally liable in circumstances where reasonable person in position of the parties would conclude agent was contracting party

External link Abod Pty Ltd v Kingston Finance Pty Limited [2019] NSWSC 242
Justice Pembroke (15 March 2019) (summons dismissed)

Catchwords

CONTRACT – construction – uncertainty – matter left for determination of one party – interest rate – times and periods – requirement of reasonableness – no uncertainty

External link Moneytech Finance Pty Ltd v Diamond Made Pty Ltd (in Liquidation) and ors
Justice N Adams (14 March 2019)

Catchwords

CONTRACTS – formation – where commercial lease provided a landlord’s incentive for fit-out – whether tenant acted as agent of landlord in entering a contract with contractor to fit-out leased premises – where factoring arrangement provided financing to contractor – where creditor advanced funds to contractor in exchange for unpaid invoices being assigned to its special purpose vehicle – whether valid contract between tenant as agent for landlord and the contractor – whether contract ratified – whether landlord liable to pay creditor as disclosed agent for tenant

CIVIL PROCEDURE ...

External link Busways Blacktown Pty Ltd v Westbus Region 1 Pty Ltd (No 3) [2019] NSWSC 155
Justice Stevenson (26 February 2019)

Catchwords

CONTRACTS – remedies – damages – difficulty of assessment – how indirect costs should be calculated – whether indirect costs can be calculated by reference to bus numbers – whether indirect costs includes other categories of costs

PROCEDURE ...

External link Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2019] NSWSC 238
Justice Wright (8 March 2019)

Catchwords

CONTRACTS – mistake – agreement as to amount of costs to be paid under orders for costs “as agreed or assessed” – where party in whose favour costs were awarded was under a mistake as to the total amount of costs incurred – agreed amount of costs paid “in full and final settlement” – whether common mistake or unilateral mistake – no unconscionable conduct and no sharp practice – no other basis for equitable intervention – agreement not liable to be set aside – relief not refused on discretionary grounds

External link Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218
Justice Ball (8 March 2019)

Catchwords

CIVIL PROCEDURE – Service outside Australia...

CONTRACT – breach of contract – whether partnership agreement existed – whether dispute falls within schedule 6 of UCPR – whether leave to serve outside Australia should be granted

CORPORATIONS – Directors ...

EQUITY – Contribution – whether court should refuse to assume jurisdiction over claim for contribution

External link ACN 057 690 034 Pty Ltd v Mick Wykrota [2019] NSWSC 197
Emmett AJA (28 February 2019)

Catchwords

Contract – Breach of building contract – No appearance by the defendant – failure by defendant to provide certificates necessary for certification of building works – quantum of loss

External link NWEC Pty Ltd v NW & RS Enterprises Pty Ltd [2019] NSWSC 149
Justice Lindsay (25 February 2019)

Catchwords

CONTRACTS – Joint Venture – Rights and duties of Joint Venturers inter se – Failure of joint venture – Accounting between joint venturers

External link Phung v Phung [2019] NSWSC 117
Justice Darke (19 February 2019)

Catchwords

LAND LAW – contract for sale of land – claim for specific performance – whether oral contract for sale of land concluded – defendant subsequently signs written note referring to agreement to “transfer the ownership” of property – whether written note satisfies writing requirements under Conveyancing Act 1919 (NSW), ss 23C(1)(a) and 54A – doctrine of part performance – whether sufficient acts of part performance – plaintiff goes into possession, pays outgoings and undertakes renovations – sufficient acts of part performance established – whether specific performance should be refused on the basis of unfairness or hardship – specific performance granted

External link Kumar v Satsang Hindu Maha Sabha of NSW Incorporated [2019] NSWSC 134
Kunc J (18 February 2019)

Catchwords

CONTRACTS — Construction — Interpretation — Agreement to settle proceedings

External link Cooper v King [2019] NSWSC 86
Emmett AJA (18 February 2019)

Catchwords

LAND LAW – conveyancing – contract for sale – deposit – whether to order relief against forfeiture under Conveyancing Act 1919 (NSW), s 55(2A)

CONTRACTS – misrepresentation – elements –whether sellers’ agent made misrepresentations to buyer – whether buyer relied on any such representations

External link Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd [2019] NSWSC 73
Harrison AsJ (15 February 2019) (appeal upheld)

Catchwords

APPEAL – Local Court – Local Court Act – Error of law – Failure to give reasons – Contract – Real estate agency agreement –Whether fees agreement varied or terminated agency agreement – Whether repudiation of fees agreement entitled aggrieved party to terminate – Whether aggrieved party entitled to sue for amount owing under original or varied agreement

Notice of contention – Agreement of accord and satisfaction – Whether fees agreement was agreement of accord and conditional satisfaction – Whether fees agreement varied agency agreement such that performance was a condition precedent

 

External link Nadilo v Souris [2019] NSWSC 108
Leeming JA (13 February 2019)

Catchwords

CONTRACT – plaintiffs alleged oral contract between family members as to contributions to acquisition of home in 1978 – whether amounts of cash provided – whether sufficient specificity of recall of precise terms of conversation – whether intention to create legal relations – even if agreement reached, not sufficient to give rise to contractually enforceable rights and liabilities

STATUTE OF FRAUDS – plaintiffs alleged oral contract to execute and not revoke will concerning home – whether Conveyancing Act 1919 (NSW) ss 23C or 54A applicable – s 23C inapplicable – s 54A applicable and fatal to contract claim – Horton v Jones applied

TRUSTS – presumed resulting trust ...

External link Edgewater Homes Pty Ltd v Donohoe [2019] NSWSC 44
Justice Stevenson (6 February 2019)

Catchwords

EQUITY – fiduciary duty – release by beneficiary of parties who allegedly knowingly received fruits of breach of fiduciary duty and who allegedly were knowingly involved in the breach – whether defaulting fiduciary also released

CONTRACT – inducing breach of contract – whether release of parties who allegedly induced breach of contract also released party allegedly in breach of contract

NSW District Court

External link Togher & Anor v Alexander & Ors (No.2) [2019] NSWDC 221
Justice O'Callaghan (4 June 2019)

Catchwords

CONTRACTS – capacity of unincorporated association to contract – whether a verbal contract existed – whether promise to pay professional fees incomplete –whether consideration given for variation of subject matter - whether contract was breached.

CLUBS AND ASSOCIATIONS - Capacity of unincorporated associations to enter into contracts – parties to the contract

AGENCY - whether implied authority in agent arising from principal’s acquiescence – whether ostensible authority – inferences drawn from absence of evidence of rules governing unincorporated associations

ESTOPPEL – res judicata - issue estoppel – whether claimant a privy in interest to another party in the latters’ settled proceedings.

DAMAGES – where expenditure in reliance upon a promise exceeds amount of the promised payment – whether damages recoverable for loss of reputation.

PRACTICE & PROCEDURE – addition of committee members of unincorporated associations to claims made against and on behalf of unincorporated associations

External link Chelmer NZ Ltd v Financial & Energy Exchange Ltd [2019] NSWDC 23
Hatzistergos DCJ (24 January 2019)

Catchwords

CONTRACTS – Termination – Contract for financial service technology – products not delivered - whether contract was repudiated or terminated for cause – contractual interpretation – compensation

CONTRACTS - Breach of Contract – Construction of contract for financial service technology – standards of contractual duty – implied term to exercise care, skill and diligence – whether term had been breached

CONTRACTS – Misleading conduct under statute – misleading or deceptive conduct – whether a failure to disclose a monetary amount included in estimated hours of work amounted to such conduct – whether a representation as to expertise and employees’ expertise amount to such conduct

TORTS – Negligence – financial services contract - duty to perform with reasonable skill and care – whether duty had been breached – liability for others’ negligence

LIMITATION PERIODS – Limitation of particular actions – contracts, torts and misleading and deceptive conduct – accrual of cause of action and when time begins to run

External link ABL Nominees Pty Limited (ACN 106 756 521), ABL Custodian Service Pty Ltd (ACN 097899720) and Bendigo and Adelaide Bank Ltd (ACN 068 049 178) v Vijayalatshimi Govindasamy [2019] NSWDC 5
Hatzistergos DCJ (24 January 2019)

Catchwords

CONTRACTS – Construction and Interpretation - Proper construction of term for finance – whether power of attorney clause allowed for a change of lender – whether loan had been validly assigned

Queensland

Qld Supreme Court (Court of Appeal)

External link Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Limited; Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd [2019] QCA 12
Sofronoff P and Fraser and Morrison JJA (6 February 2019)
Appeal from Supreme Court (Justice Flanagan) [2017] QSC 85

Catchwords

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – where Wiggins Island Coal Export Terminal Pty Ltd (WICET) is the corporate vehicle for a joint venture to develop and operate a coal export terminal – where Civil Mining & Construction Pty Ltd (CMC) was contracted by WICET to complete some of the earthworks and civil works required for the construction of the terminal – where WICET caused CMC to be delayed by 208 days in completing the work under the contract, for which CMC was entitled to an extension of time to the date for practical completion – where in a section of the contract dealing with variations the contract contained a table headed “Schedule of Daywork Indirect Personnel and Facilities Rates” (DIPFR) – where the central question on CMC’s appeal is whether the DIPFR schedule contains rates such that it can be said to be one where the Contract “prescribes specific rates … to be applied in determining the value” of the CMC’s on-Site overhead costs for the 208 days of delay caused by WICET – whether on a proper construction of the contract the DIPFR schedule is not one that is prescribed under the relevant clause of the contract

PROCEDURE ...

External link Jawhite Pty Ltd & Anor v Trabme Pty Ltd & Ors [2019] QCA 7
Sofronoff P, Morrison and McMurdo JJA (1 February 2019) (appeal allowed)
Appeal from Supreme Court (Justice Boddice) [2018] QSC 174

Catchwords

COURTS AND JUDGES – CONTEMPT – ...

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where the appellants, and the fourth and fifth respondents were parties to a contract that required a loan money to the company upon demand – where the primary judge found demand was properly given – where the appellants and the fourth and fifth respondents were contractually obliged to provide the loan demanded – where the fourth and fifth respondents provided loan – where the primary judge ordered the appellants to pay the second respondent a pro rata sum – where the appellants failure to provide the loan did not cause the company any loss – whether a contract to lend money can be specifically enforced – whether the court can order damages for breach of a contract to lend money

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where the appellants and the fourth and fifth respondents were parties to a contract that provided an obligation to give security to the third party lenders for the benefit of the company – where the appellants failed to perform their contractual obligation to provide security to the third party lender – where no demand was made on the appellants by third party lender – where the fourth and fifth respondents, as parties to the contract, seek to compel the appellants to perform the contractual obligation to provide security – where no loss was suffered as a result of the breach – whether the contractual obligation to provide security can be specifically enforced – whether damages can be awarded for breach

APPEAL AND NEW TRIAL – PROCEDURE ...

Qld Supreme Court (Supreme Court )

External link Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163
Justice Jackson (27 June 2019)

Catchwords

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – CONSISTENCY WITH EXPRESS TERMS – where ordinary meaning of text is clear - where defendants submit that legal meaning of text cannot be affected by extrinsic facts - whether the ambiguity requirement is a gateway that must be passed through before admission of evidence of extrinsic facts in every dispute relating to the construction of a contractual term in a formal written contract – whether ambiguity gateway does not apply where something has clearly gone wrong with the text on its ordinary meaning.

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – CUSTOM AND USAGE – INCORPORATION INTO CONTRACT – CONSISTENCY WITH EXPRESS TERMS – where ordinary meaning of text is clear - where defendants submit that legal meaning of text cannot be affected by surprising operation or commercial inconvenience or disadvantage to the plaintiff - whether the operation of the text on its ordinary meaning amounts to a commercial absurdity – whether the court may depart from ordinary meaning in order to avoid a commercial absurdity – whether the construction contended for is sufficiently clear

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where ordinary meaning of text is clear - where defendants submit that term cannot be implied because of failure to satisfy requirements for implication of a term implied in fact – whether the implied term contended for is sufficiently clear

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where each defendant notified the plaintiff and each Other Customer under cl 6.1(c) of the WIRP Deed that every relevant Customer’s Segment for the defendant was to cease being a Customer’s Segment – where notice had effect of reducing each defendants’ liability to pay the WIRP Fee to nil – where notice had effect of shifting the burden of the WIRP Fee for the Customer’s Proportion for the Segment onto any remaining Segment Customer for the Segment – whether there is an implied term in the WIRP Deed that a Customer is obliged to act in good faith towards and deal fairly with the plaintiff in respect of giving notice under cl 6.1(c).

External link Lake Laurel Pty Ltd & Ors v Nichols Constructions Pty Ltd & Ors (No 2) [2019] QSC 145
Justice Bowskill (6 June 2019)

Catchwords

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where the parties were involved in a project to subdivide land – where the first plaintiff and the first defendant entered into a loan agreement, with the second defendants as guarantors, which was secured by a registered mortgage, under which the first defendant agreed to pay the principal sum of $3,775,000.00 to the first plaintiff, by incremental instalments on the sale of each lot in the proposed subdivision, with the balance to be repaid 12 months from registration of the plan(s) of subdivision – where the debt under the loan agreement and mortgage were later assigned to the third plaintiff – where the third plaintiff claims the debt has become due and payable, as a consequence of the first defendant’s breach of express and implied terms of the loan agreement and mortgage, by allowing the development approval for the land to lapse, and failing to obtain registration of the plan(s) of subdivision within a reasonable time – where the defendants do not challenge the contention that the first defendant breached the loan agreement and/or the mortgage in the ways contended by the third plaintiff, but argue the principal sum has not become payable because of an earlier breach by the first plaintiff of the implied obligation under the loan agreement and the mortgage to cooperate – whether the implied obligation to cooperate required the first plaintiff to take steps to ensure that plan(s) for subdivision of the land were registered, or not to hinder or obstruct the first defendant’s efforts in that regard – whether such a breach, even if established, could be relied upon to defend the claim by the third plaintiff, as assignee, to recover the principal sum – whether the first plaintiff breached the implied obligation to cooperate – whether the principal sum under the loan agreement is due and payable to the third plaintiff

External link Summer Swim Pty Ltd v Sam Riley Promotions Pty Ltd [2019] QSC 70
Justice Boddice (26 March 2019)

Catchwords

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – PARTICULAR PARTIES – VENDOR AND PURCHASER – where the plaintiff purchased a swim school from the defendant – where the contract stipulated that the defendant would offer the plaintiff training and support for six months after the sale – where training was offered but not provided – whether the defendant’s failure to provide training and support constituted a breach of the contract – whether the plaintiff’s business failed as a consequence of the defendant not providing training and support

External link Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49
Justice Henry (11 March 2019)

Catchwords

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – STATUTORY WARRANTIES FOR RESIDENTIAL BUILDING WORK – where the plaintiffs contracted the first defendant to build their dream home – where they claim the work did not meet the statutory standard of expectation – where they plead an entitlement to damages for breach of warranty on the basis that they have suffered or will suffer loss and damage, being the cost of carrying out remedial work to the house – whether the state of each item of work evidenced a breach of statutory warranty so as to require rectification

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGED, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – where the plaintiffs claim damages as against the first defendant for wrongful repudiation of the contract – where the amount claimed includes the cost of remedial work plus the cost of completing construction – whether the first defendant’s conduct manifested an intention to fulfil the contract only in a manner substantially inconsistent with their obligations under it and not in any other way

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE ...

External link Pix v Suncoast Marine Pty Ltd [2018] QSC 235
Chief Justice Holmes (12 October 2018) (published 2019)

Catchwords

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – IN GENERAL ...

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – BREACH OF CONTRACT – where the plaintiff purchased a catamaran from the second defendants – where the plaintiff claimed that the first defendant was the undisclosed principal in the sale – where the plaintiff contended that the first defendant had breached a term implied by s 71 of the Trade Practices Act 1974 (Cth) that the vessel would be of merchantable quality – where the plaintiff contended that both the first and second defendants had breached a term implied by s 17 of the Sale of Goods Act 1896 (Qld) that the vessel would be of merchantable quality – whether the defendants were in the business of dealing in goods of the vessel’s description – whether the plaintiff bought the vessel by description – whether the vessel was of merchantable quality

External link Binaray Pty Ltd (ACN 119 724 211) as Trustee for the Allen Family Trust v RAMS Financial Group Pty Limited (ACN 105 207 538) [2019] QSC 33
Justice Browne (22 February 2019)

Catchwords

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS – BREACH OF CONTRACT – where defendant franchisor had various sales channels including brokers and franchisees – where plaintiff franchisee and defendant entered into a Franchise Agreement – whether on the proper construction of the Franchise Agreement the defendant was obliged to allocate and provide information about broker-originated customers to the plaintiff – whether that obligation extended to broker-originated customers with existing loans or who had discharged their loans - whether the defendant breached its contractual obligation to allocate and provide broker-originated customers to the plaintiff by not providing the plaintiff with a list of broker-originated customers in its allocated territory – whether access to a ‘Loan Viewer’ sufficient to discharge defendant’s obligation

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – REMOTENESS AND CAUSATION –LOSS OF PROFITS – where the plaintiff argued that as a result of the defendant’s breach it lost the opportunity to sell loans to those customers on the list of broker-originated customers and others – where there were a number of barriers and risks affecting the plaintiff being able to sell loans to broker-originated customers – where some broker-originated customers had drifted to the plaintiff – effect on value of commercial opportunity and valuation of loss – where disputed evidence as to strength of list of broker-originated customers as a lead – where dispute as to conversion rate to be adopted in valuing loss - whether the opportunity lost should include referrals and loans other than broker loans - whether plaintiff established on balance of probabilities that breach caused loss of a valuable commercial opportunity

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS - where defendant contended part of action for breach of contract statute barred – where proceeding issued more than six years after alleged breach – whether continuing obligation

INTEREST – RECOVERABILITY OF INTEREST – IN GENERAL - whether undue delay by plaintiff – whether interest should not accrue until moneys were payable

External link Wellington v Huaxin Energy (Aust) Pty Ltd (formerly Cuesta Coal Limited) [2019] QSC 18
Justice Jackson (10 February 2019)

Catchwords

CONTRACTS – GENERAL CONTRACTUAL PROVISIONS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – whether implied duty to cooperate existed – whether implied duty to cooperate required defendants to undertake further work – where plaintiffs failed to establish breach of the implied duty to cooperate

CONTRACTS – GENERAL CONTRACTUAL PROVISIONS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – whether implied duty to undertake detailed and reliable exploration work existed – where the term was not ‘so obvious’ it goes without saying – where the circumstances yielded a number of possible alternatives

CONTRACTS – GENERAL CONTRACTUAL PROVISIONS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – whether plaintiffs’ entitlement to issue of Third Tranche Shares and Third Tranche Options persisted after Third Milestone Date – where ongoing duty inconsistent with express term in Agreement – where inconsistent with Third Milestone Date constituting a “sunset date”

Queensland Civil and Administrative Tribunal

External link Van Der Westhuizen v Samcol Homes Pty Ltd & Anor [2019] QCAT 171
Member Deane (27 June 2019)

Catchwords

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – whether home owner entitled to re-imbursement of moneys paid to contractor – whether paid under a mistaken belief – whether contractor ought to be relieved of repayment where mistake in terms of written contract CONTRACTS – BUILDING, ENGINEERING AND RELATED

CONRACTS – PERFORMANCE OF WORK – GENERAL –- whether home owner entitled to damages for work not completed in accordance with the contract where home owners had agreed practical completion achieved CONTRACTS –

BUILDING, ENGINEERING AND RELATED CONRACTS – PERFORMANCE OF WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where owner agreed to variation work - whether contractor entitled to claim by way of quantum meruit – whether section 84 of the Domestic Building Contracts Act clearly abrogated right to restitutionary claim

South Australia

SA Supreme Court

External link Knight Frank Australia Pty Ltd v Australian Central Credit Union
Justice Stanley (7 February 2019)

Catchwords

APPEAL AND NEW TRIAL - appeal - general principles - interference with Judge's findings of fact - functions of appellate court - where inferences of fact involved

LANDLORD AND TENANT - termination of the tenancy - surrender

CONTRACTS - general contractual principles - construction and interpretation of contracts

EQUITY - equitable remedies

SA District Court

External link George Street Steel Pty Ltd v Wilson Pastoral International Pty Ltd & Ors
Judge McIntyre (8 February 2019)

Catchwords

CONTRACTS - building, engineering and related contracts - remuneration - recovery on quantum meruit

INDUSTRIAL LAW - South Australia - regulation of particular matters under particular statutes - workmen's liens

PROFESSIONS AND TRADES - engineers - negligence

Victoria

Vic Supreme Court (Court of Appeal)

External link PCCEF Pty Ltd v Geelong Football Club Ltd [2019] VSCA 144
Justices Whelan, McLeish and Emerton (26 June 2019)
Appeal from: External link Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313

CONTRACT – Commercial lease – Application for leave to appeal trial judge declaration regarding construction of market rent review provision – Tenant succeeded before trial judge – Landlord’s construction held to be correct – Leave granted and appeal allowed – Electricity Generation Co v Wooodside Energy Ltd (2014) 251 CLR 640, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 applied – Growthpoint Properties Australia Ltd v Australia Pacific Airports (Melbourne) Pty Ltd [2014] VSC 556 distinguished.

External link Rimon Toma v Carolyn Anne Olcorn [2019] VSCA 116
Justices Whelan and McLeish (29 May 2019)
Appeal from: External link Rimon Toma v Carolyn Anne Olcorn [2018] VCC 224

CONTRACT – Sale of land – Unilateral mistake – Vendor entered into contract for sale of land under mistaken belief as to adjustment at settlement for rent pre-paid – Whether purchaser was aware of mistake – Trial judge found purchaser was aware of mistake and opportunistically sought to take advantage of it – Contract rescinded – Leave to appeal granted but appeal dismissed – Taylor v Johnson (1983) 151 CLR 422, Leibler v Air New Zealand Ltd [No 2] [1999] 1 VR 1 applied.

External link The Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd
Justices Kaye, McLeish and Harrave (24 April 2019)

CONTRACT – Formation – Sale of land – Letter of offer signed by parties – Parties agreed to adopt vendor’s standard contract of sale – 1 per cent of contract price payable on signing offer, balance of 20 per cent deposit on execution of contracts – Purchaser to have access to premises under licence on execution of contract – Terms confidential until execution of contract – No vendor’s statement provided – Condition in letter of offer that ‘offer is subject to the contract being executed’ – Whether offer subject to letter being signed or to future contract of sale – Whether signed letter of offer binding – Masters v Cameron (1954) 91 CLR 353, applied – Molonglo Group (Aust) Pty Ltd v Cahill [2018] VSCA 147, considered – Sale of Land Act 1962, s 32 – Relevance of post-signature conduct or negotiations – Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141, applied..

Vic Supreme Court

External link Rivex Crane Hire Pty Ltd v Armquip Pty Ltd & ors
Justice Croft (22 March 2019)

CONTRACT – Agreement to purchase crane hire business – First right of refusal to purchase further business and assets – Proper construction of first right of refusal to purchase provisions – Whether obligation to offer on same terms as terms of ultimate sale to a third party – Nature of opportunity to purchase inherent in first right of refusal to purchase provisions – Norco Co-Operative Ltd v Parmalat Australia Ltd [2006] QSC 38 – Goldmaster Homes Pty Ltd v Johnson (2006) NSW ConvR ¶ 56-142; [2004] NSWCA 144 – Claim dismissed.

External link JPA Finance Pty Ltd v Gordon Nominees Pty Ltd [2019] VSC 171
Justice Robson (21 March 2019)

CONTRACT – Notice of default – Service of notice – Whether strict compliance with address for notices required – Notice not given in accordance with notice requirements – Notice invalid.

RELIEF AGAINST FORFEITURE – Consequence of non-observance of statutory notice was the loss of a party’s right to buy 20 per cent of units in a unit trust that owns a motel – Held loss of option constituted circumstances where equity would grant relief against forfeiture.

External link Primary Flooring Pty Ltd v Australian Comfort Group Pty Ltd [2019] VSC 104
Justice Croft (8 March 2019)

CONTRACT – Supply agreement – Proper construction – Implied terms – Good faith in contract – BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 – Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 – Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 – Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 – Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190.

External link IMO Geopec Pty Ltd [2019] VSC 128
Associate Justice Ierodiaconou (7 March 2019)

CORPORATIONS – Dissolution of partnership – monies held on trust by accountant – dispute over payment out of surplus trust monies – monies paid into Court – s 69 Trustee Act 1958

CONTRACT – Whether inference can be drawn from deleted words – Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 – Gee Dee Nominees Pty Ltd v Ecosse Property Holdings Pty Ltd [2016] VSCA 23

External link Chickabo Pty Ltd & Others v Zphere Pty Ltd & Others [2019] VSC 73
Justice Sifris (22 February 2019)

EQUITY ...

CONTRACT – Execution and signature – Fourth defendant signed partnership deed in capacity of director of first defendant – Whether fourth defendant personally bound by partnership deed – Provisions of partnership deed impose personal obligations – Evidence of objective intention of signatories to be personally bound – Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160.

CONTRACT – Interpretation – Whether fourth defendant is a partner of a partnership of corporations – Definition of ‘Partners’ refers to a schedule which includes the fourth defendant – Definition of ‘Partners’ includes fourth defendant ‘where relevant to actions required from individuals’ – Partnership deed imposes obligations on fourth defendant by labelling him a ‘Partner’ – Fourth defendant is a partner.

PARTNERSHIP ...

External link Pacific Wireless Pty Ltd v Breeze Logistics Australia Pty Ltd [2019] VSC 64
Justice Lyons (18 February 2019) (appeal from [2018] VCAT 173)

ADMINISTRATIVE LAW – Appeal from decision ...

CONTRACT - Termination by plaintiff for breach by defendant - Where contract provided for Termination Payment – Whether Termination Payment a genuine pre-estimate of damage – Expectation damages - Whether overhead expenses should be included in the assessment of damages – No absolute principle that account must be taken of overhead expenses – Plaintiff entitled to such damages as to place it in the same position it would have been in had the contract been performed

External link Bruce Thomas Pollard v Catherine Mary Pollard and Registrar of Titles [2019] VSC 21
Daly AsJ (8 February 2019)

REAL PROPERTY – Caveat lodged by the plaintiff’s former wife on the basis of an option to purchase the subject property pursuant to Deed – Whether former wife was offered the option to purchase consistent with the terms of the Deed.

CONTRACTS – Construction – Obligations imposed upon plaintiff in relation to the sale of the property – Whether any offer was made when notice of sale was given – Whether damages are adequate remedy for sale of land – Pianta v National Finance and Trustees Ltd (1994) 180 CLR 146, referred to – Whether lack of mutuality of the parties’ obligations is an obstacle for grant of specific performance – equitable remedies – equity does not relieve parties from the consequences of their bargains.

External link David A Harris v AMP Financial Planning [2019] VSC 24
Justice Digby (4 February 2019)

Catchwords

CONTRACT – Construction and interpretation – Implied terms – Whether contract requires discretion to be exercised in good faith – Whether duty of good faith performance is implied in fact – Whether duty of good faith performance is implied in law – Burden of proof – BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 applied.

CONTRACT – Termination of contract – Termination clause – Where parties agreed to unqualified right of termination with notice – Whether express right to terminate contract is qualified – Whether express right to terminate contract must be exercised in good faith – Whether prohibition against unconscionable conduct qualifies express right to terminate contract.

INJUNCTIONS – Injunction to restrain termination of contract – Whether plaintiffs have a prima facie case – Whether balance of convenience favours granting injunction – Issue of the plaintiffs’ solvency – Whether value of an undertaking for damages is diminished – Where injunctive relief unsuitable because parties will be forced to continue a fraught relationship.

External link George Byron Petselis v Samuel Tatarka [2019] VSC 8
Justice Keogh (23 January 2019)

Catchwords

APPEAL FROM MAGISTRATE — Where barrister retained by solicitor to appear for client – Barrister’s claim for unpaid fee – Whether there was a contract between the client and barrister for payment of fee – Whether the contract was void due to non-compliance with the Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 (Legal Profession Uniform Law) – Legal Profession Uniform Law cls 174, 175, 178, 180, 184, 185 – Dimos v Hanos & Egan[2001] VSC 173 (29 May 2001) – State of Victoria v Subramanian [2008] VSC 9 (5 February 2008).

Vic County Court

External link Manicured Muttz Pty Ltd v Roycar Investments Pty Ltd and Roy Smith [2019] VCC 64
Judge Marks (7 February 2019)

CONTRACT – Purchaser agreed to buy a business on terms contained in a written agreement – Purchaser walked away from the business when money was still owing to the vendor under the agreement – Purchaser offered to vary the agreement on terms such that purchaser would no longer owe any money under the agreement – Whether variation offer was accepted by the conduct of the vendor – whether objective bystander would conclude from vendor’s conduct that it had accepted the variation offer, and conveyed that acceptance to purchaser – Held: Offer not accepted.

MISLEADING AND DECEPTIVE CONDUCT - Whether vendor misrepresented the profitability of the business to the purchaser and this induced the purchaser to buy the business – Held: No.

Western Australia

WA Supreme Court

External link Van Duren v Hammond & Roberts Pty Ltd [No 2] [2019] WASC 246
Justice Kenneth Martin (5 July 2019)

Catchwords

Contract - Settlement agreement - Interpretation - Question for express term - Surrounding circumstances - Determination on papers

External link Ardizzone v Valentino Nominees Pty Ltd [2019] WASC 55
Justice Archer (27 February 2019)

Legislation

Included consideration of s 18 of the Australian Consumer Law

Catchwords

Breach of contract - Vendor's warranty - General Conditions - Requirement made by governmental authority - Misleading conduct by non-disclosure - Reasonable expectation of disclosure - Causation - Apportionment where one wrongdoer received a substantial benefit - Notice declaring an environmentally sensitive area - Threatened ecological community - 'Determined'

External link Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2
Justice Vaughan (10 January 2019)

Catchwords

Restitution - Provision of services - Whether agreement between the parties that remuneration payable for services performed

Contract law - Recovery of loan - Terms of repayment - Whether parties agreed repayment terms other than payment on demand

Equity - Breach of fiduciary duty - Whether fiduciary duties were relevantly owed - Whether actions taken constitute a breach of fiduciary duty - Whether loss and damage suffered as a result of breach - Accessorial liability - Whether party liable under first limb of Barnes v Addy as 'knowing recipient'

Corporations law - Breach of fiduciary duty - Director's liability - Whether an order should be made under s 1318 of the Corporations Act 2001 (Cth)

WA District Court

External link Czernyszow v Abbott [2019] WADC 17
Lonsdale DCJ (7 February 2019)

Catchwords

Agreement for purchase of horses - Whether a lay-by agreement - Breach of contract - Vendor's claim for loss of a bargain - Alleged errors of fact

 

External link Navabi v Ghasemi [2019] WADC 1
Quail DCJ (17 January 2019)

Catchwords

Contract - Consideration - Misleading or deceptive conduct - Unconscionability - Damages - Plaintiff bought share in company

 

 

2019 (Consumer)

High Court | Federal | ACT | NSW | Vic | Western Australia

Cases are sorted by jurisdiction in court and within each court appear in reverse chronological order

High Court of Australia

ASIC v Kobelt [2019] FCA 992 (12 June 2019)
Unconscionable Conduct - whether conduct unconscionable.

Majority (Kiefel CJ, Bell, Gageler and Keane JJ) found no unconsionable conduct.

Nettle, Gordon and Edelman dissented (Kobelt took advantage of special disadvantage of the customers)

Catchwords

Trade practices – Consumer protection – Unconscionable conduct – Where s 12CB(1) of Australian Securities and Investments Commission Act 2001 (Cth) relevantly prohibited "unconscionable" conduct in trade or commerce in connection with supply or possible supply of financial services – Where respondent provided "book-up" credit to Anangu customers of general store – Where book-up credit allowed deferral of whole or part of payment for goods subject to respondent retaining customer's debit card and personal identification number – Where respondent used debit card to withdraw whole or nearly whole of wages or Centrelink payments shortly after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate and often illegible – Where customers vulnerable due to remoteness, limitations on education, impoverishment and low levels of financial literacy – Where book-up system "tied" Anangu customers to general store – Where customers had understanding of basic elements of book-up system – Where withdrawals authorised by customers – Where customers generally supportive of book-up and respondent's business – Where book-up protected customers from cultural practices requiring sharing of resources with certain categories of kin – Where book-up ameliorated effects of "boom and bust" cycle of expenditure and allowed purchase of food between pay days – Whether respondent's conduct unconscionable within meaning of s 12CB(1) of Act.

Words and phrases – "agency", "book-up", "credit", "cultural practices", "demand sharing", "dishonesty", "exploitation", "financial literacy", "humbugging", "inequality of bargaining power", "legitimate interests", "moral obloquy", "passive acceptance", "power imbalance", "special disadvantage", "standard of conscience", "system or pattern of conduct", "transparency or accountability", "unconscientious conduct", "unconscionable conduct", "undue influence", "unfair", "unjust", "unwritten law", "victimisation", "voluntary", "vulnerability".

Australian Securities and Investments Commission Act 2001 (Cth) – ss 12CA, 12CB, 12CC.

See also: Katy Barnett, 'Australian Securities and Investments Commission v Kobelt' (Opinions on High blog, 20 June 2019)

See also: Case A32/2018 (High Court page)

Federal Court of Australia

Trial division

External link Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited [2019] FCA 1049
Justice White (5 July 2019)

Catchwords

CONTRACTS – Applicant contracted with the Respondents to construct an access road to a remote mine site – various matters led to the incurring of additional costs and to construction delays – claim for damages for breach of contract - claim for payment of the time-related costs incurred by the Applicant in respect of additional work – claim for other consequences of the additional time taken and the additional work – claim for payment of variations.

Held: claim for the time-related costs fails but other aspects of the breach of contract claim succeed in part.

CONSUMER LAW – claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – claim that in entering into the contract the Applicant relied on four representations made by the Respondents which were misleading or deceptive – claim that if the representations had not been made the Applicant would not have entered into the contract at all or, alternatively, would have entered into a contract on schedule of rates terms which assigned the risk and cost of additional work and delay to the Respondents – Applicant did not prove that the representations were made or that they were misleading or deceptive – Applicant did not prove that it relied on the pleaded representations in entering into the contract – Applicant did not establish loss by reason of the alleged misleading or deceptive conduct.

Held: contraventions of s 18 of the ACL not made out.

ACCC v Kimberly-Clark Australia Pty Ltd [2019] FCA 992 (28 June 2019)
Misleading or deceptive conduct (arising from claims of flushable wipes) (claim failed)

Catchwords

CONSUMER LAW – misleading and deceptive conduct – where the applicant alleges contraventions of ss 18, 29(1) and 33 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL) arising out of the respondent’s promotion of flushable wipes – where the applicant alleges that flushable wipes caused harm to household and municipal sewerage systems – whether representations were with respect to a future matter pursuant to s 4 of the ACL – whether flushability representation was false, misleading or deceptive – flushability representation was not false, misleading or deceptive

Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ss 4, 18, 29(1), 33

Held: conduct not misleading or deceptive

ACCC v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996
Justice Perry (26 June 2019) (misleading or deceptive conduct; pecuniary penalties)

Catchwords

CONSUMER LAW – contraventions of ss 29(1)(a), 33, Australian Consumer Law (ACL) – where respondent wholesaler engaged in conduct likely or liable to mislead or deceive potential purchasers by implying that five product lines were hand-painted by Australian Aboriginal persons and were made in Australia – consideration of principles for assessing appropriate pecuniary penalties where respondent engaged in a multitude of overlapping contraventions – consideration of the primacy of deterrence in setting an appropriate penalty – where penalties still have general deterrent effect despite the respondent being in liquidation – where public importance in sending a strong message of deterrence is heightened given the economic, social and cultural harms to Indigenous Australians which may flow from misrepresentations regarding the provenance of art and souvenirs as Australian Indigenous art and artefacts – total pecuniary penalties of $2.3 million imposed.

External link Lucas v Zomay Holdings Pty Ltd [2019] FCA 830
Justice O'Callaghan (4 June 2019)

Catchwords

CONTRACTS – applicant seeks specific performance of contract – “fourth category” of Masters v Cameron (1954) 91 CLR 353 – allegation of repudiation

CONSUMER LAW - misleading and deceptive conduct

External link Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2019] FCA 797
Justice Perry (30 May 2019)

Catchwords

CONSUMER LAW – admitted contraventions of ss 18 and 29(1)(m), Australian Consumer Law (ACL) – misleading or deceptive representations made on respondent airline’s website – where representations in booking flow that fares were non-refundable when there may be an entitlement to a refund under statutory consumer guarantees – where representation in conditions of carriage that flight services were not subject to statutory guarantees – where representations in conditions liable to mislead consumers as to remedies available for non-compliance with consumer guarantees – consideration of principles for determining whether agreed penalty and other agreed orders for non-compliance with the ACL appropriate – where public importance in sending a strong message of deterrence to highlight importance of ensuring accuracy in making representations on consumer rights – where no intention to mislead – where high degree of co-operation by the respondents with the ACCC – where appropriate to impose agreed penalties and grant declaratory relief in terms agreed

External link Aucare Dairy (Aust) Pty Ltd v Huang (No 3) [2019] FCA 412
Justice Davies (27 March 2019)

Catchwords

CORPORATIONS – breakdown of joint venture ...

CONSUMER LAW – whether second respondent contravened s 18 of the Australian Consumer Law – where representations made that contractor company necessary to control costs – where evidence of intention that contractor company would charge inflated prices for substantial profit

EQUITY – multiple and significant breaches of fiduciary duties ...

External link F.Y.D. Investments Pty Ltd v Promptair Pty Ltd (No 2) [2019] FCA 419
Justice White (26 March 2019)

Catchwords

CONTRACTS – claim for a debt arising pursuant to the terms a contract ...

CONTRACT – claim for damages for breach of contract ...

Held: breaches of contract established.

CONSUMER LAW – claim that the Respondent engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law by failing to disclose, when submitting progress payment claims, that the AHUs it had installed were not from the approved manufacturer – claim that Promptair implicitly represented that it had properly performed part of the contract.

Held: misleading or deceptive conduct claim established.

DAMAGES – claim that judgment should be entered against the Respondent for its proportionate liability only, on basis that the Applicants’ consulting engineer had contributed to the loss by breaching its contractual and tortious duty of care – claim unsuccessful.

CONSUMER LAW – claim by the Respondent (Cross-Claimant) that Cross-Respondents had engaged in misleading and deceptive conduct in representing to it that the AHUs would meet the specified requirements – Cross-Respondents did not attend the trial.

Held: Cross-Claimant entitled to judgment against the Cross-Respondents on the cross-claim.

External link ACCC v Australian Private Networks Pty Ltd (trading as Activ8me) [2019] FCA 384
Justice Middleton (15 March 2019)

Catchwords

No catchwords [dealt with misleading and deceptive conduct (s 18 ACL) and fale or misleading representations (s 29 ACL)]

Australian Competition and Consumer Commission v Australian Private Networks Pty Ltd (trading as Activ8me) [2019] FCA 384

External link Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106
Justice Murphy (12 February 2019)

Catchwords

CONSUMER LAW – false and misleading representation in contravention of s 12DB(1)(b) of the Australian Securities and Investment Commission Act 2001 (Cth) – where respondent did not adequately inform customers that they were automatically opted in to direct billing for third party content – where some customers unintentionally purchased third party content without knowledge or consent – where Optus applied charges to customer accounts despite awareness of this issue – principles relevant to appropriate penalty – appropriateness of agreed declaration and order for $10 million pecuniary penalty

External link GM Global Technology Operations LLC v S.S.S. Auto Parts Pty Ltd [2019] FCA 97
Justice Burley (11 February 2019)

Catchwords

DESIGNS ...

CONSUMER LAW – misleading or deceptive conduct – whether, in a letter of demand, there is a duty to disclose matters including particulars of the defence afforded by s 72 of the Designs Act 2003 (Cth); that certain designs alleged to have been infringed had not been certified in accordance with s 73 of the Designs Act; that the designs had a maximum term of monopoly; and/or that the impugned parts were not “counterfeit” as alleged

COPYRIGHT ...

External link ACCC v Geowash Pty Ltd (Subject to a Deed of Company Arrangement)
Colvin J (8 February 2019)
View External link ACCC media release (11 February)

Catchwords

CONSUMER LAW - application for orders and pecuniary penalties against a company, its sole director and its 'national franchising manager' - whether company and individuals engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law - consideration of s 29(1)(i) of the Australian Consumer Law - where representations made on company website to prospective franchisees about expected revenue and profit - where representations made on company website that the company has a commercial affiliation with several brands - where representations on website were false - where dealings as to charges to be made to franchisees created the overall impression that franchisor intended to charge in a particular way - where overall impression was false and misleading as to the franchisor's intentions as to the way it would charge - finding that the company did engage in misleading conduct

CONSUMER LAW - whether company engaged in unconscionable conduct in contravention of s 21 of the Australian Consumer Law by its charging practices - where franchisees were charged in staged payments and told these payments would be applied for the set-up and fit-out of their franchise - where the payments were instead applied to meet the expenses of the company generally and pay commissions to staff - where the payments were not applied to the set-up and fit-out of the franchise - finding that the company did engage in unconscionable conduct

CONSUMER LAW - whether company did not act in good faith towards franchisees in contravention of cl 6 of the Franchising Code of Conduct - consideration of the meaning of good faith in the unwritten law - where the company's charging practices did not accord with the terms of the franchise agreements entered into - consideration of significance of facts occurring prior to commencement of operation of cl 6 - finding that the company did not act in good faith

CONSUMER LAW - consideration of accessorial liability of company director and 'national franchising manager' for contraventions by company - whether individuals were knowingly concerned in contraventions - where director and 'national franchising manager' were principal actors and principal financial beneficiaries of the conduct - finding that sole director was knowingly concerned in all contraventions - finding that 'national franchising manager' was knowingly concerned in some contraventions

External link Parker trading as On Grid Off Grid Solar v Switchee Pty Ltd trading as Australian Solar Quotes (No 2) [2019] FCA 79
Gleeson J (8 February 2019)

Catchwords

CONSUMER LAW - damages for contraventions of ss 18, 21 and 29(1)(h) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) - where respondent's contraventions allegedly suppressed success of applicant's solar panel installation business - whether damage proven - quantification of damage to business, through past hypothetical or loss of chance analysis

Legislation (select)

Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 21, 29(1)(h), 236

External link Key Logic Pty Ltd v Blue Groper Investments Pty Ltd [2019] FCA 63
Derrington J (7 Feb 2019)

Catchwords

CONSUMER LAW – misleading and deceptive conduct – form of comparative advertising – misleading statements about competitor’s product – injunctions, declarations and corrective action ordered

COPYRIGHT – unauthorised use of photographs in comparative advertising – photographs given by one respondent to another for such use – personal liability of company directors for breach by company – authorisation of infringement by one respondent of another

Legislation (select)

Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law ss 18, 29(1)(a), 29(1)(g), 232, 247

External link Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39
Mortimer J (29 January 2019)

Catchwords

CONSUMER LAW – contraventions of ss 106, 118 and 136 of the Australian Consumer Law – hearing on penalty for breaches of product safety standards, product information standards and prohibition on sale of products subject to permanent ban – adverse publicity orders – pecuniary penalties

External link Australian Competition and Consumer Commission v Ultra Tune Australia Pty Ltd [2019] FCA 12
Bromwich J (18 January 2019)

Catchwords

CONSUMER LAW – whether franchisor contravened disclosure requirements in the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Franchising Code) – whether franchisor contravened cl 6(1) of the Franchising Code, obligation to act in good faith – whether franchisor engaged in misleading or deceptive conduct – whether franchisor made false or misleading representations – whether conduct of the franchisor aberrant – held: contraventions established as alleged – assessment of pecuniary penalties – held: pecuniary penalty of $2,604,000 imposed; ancillary declarations and other relief to be granted in final orders

Federal Circuit Court of Australia

External link Mottersead Investments Pty Ltd v Aircraft Support Industries Engineering Pty Ltd (In Liequidation) & Ors [2019] FCCA 1375
Judge Driver (2 July 2019)

Catchwords

CONSUMER LAW – Representations as to future conduct – promise to pay outstanding invoices – whether false or misleading – whether unconscionable conduct – whether statements relied upon – whether chose in action assigned.

CONTRACT – Outstanding invoices – contractual warranty to pay – breach of warranty – assignment of debt.

Australian Capital Territory (Consumer cases)

ACT Civil and Administrative Tribunal

External link La Pompa (Aus) Pty Limited v Scheiffers & Anor [2019] ACAT 59
Senior Member E Ferguson (26 June 2019)

Catchwords

CIVIL DISPUTE – consumer guarantee to render services with due care and skill – probative value of statements made by parties who are not called as witnesses – damages for stress and inconvenience for breach of building contract and statutory guarantees – negotiations correspondence as evidence of settlement agreement – clear intention required to exclude right to damages – circumstances justifying exemplary damages

Legislation cited (includes)

Australian Consumer Law ss 18, 60, 62, 237, 267, 268, 269, 270

New South Wales (Consumer cases)

NSW Supreme Court

External link Australia and New Zealand Banking Group Limited v James (No 3) [2019] NSWSC 832
Justice Ball (5 July 2019)

Catchwords

JUDGMENTS AND ORDERS – Amending, varying and setting aside – ...

MISLEADING AND DECEPTIVE CONDUCT – Australian Consumer Law – silence – whether reasonable expectation of being informed of information concerning activities of receivers – whether disclosure required by terms of guarantee – whether reasonable expectation of disclosure of other matters – reliance – whether defendant relied on absence of that information – whether knowledge of that information would have led defendant to not accept judgment by consent 

CORPORATIONS – ...

External link Botany Bay Apartments Pty Ltd v Badolato [2019] NSWSC 296
Justice Davies (26 March 2019)

Catchwords

LAND LAW – conveyancing - two contracts for sale – off-the-plan purchase – alleged representations ...

LAND LAW - conveyancing – deposit - discretionary power to order relief against forfeiture of a deposit under ...

CONSUMER LAW – misleading or deceptive conduct – whether the vendor breached ss 18 and/or 30 of the Australian Consumer Law – whether the vendor made a representation as to the size of the properties – vendor denied making such a representation – assessment of the relative credibility of representor and representee – fallibility of human memory – reliance upon contemporaneous documents to resolve dispute – where the contemporaneous documents pointed strongly to the representation not being made – where, in any event, the purchaser was on notice within the cooling off period that no such representation was being made – claim unsuccessful

CONSUMER LAW – unconscionability – where the purchaser alleged that the vendor was aware of new plans affecting the size of the properties – where such knowledge was purported to have been acquired during the cooling off period - whether the vendor indeed had such knowledge – paucity of evidence in support – purchaser under no special disadvantage – claim unsuccessful

CONSUMER LAW – harassment and coercion under s 50 Australian Consumer Law – unsuccessful settlement conference after the commencement of proceedings – purchaser given three options including continuing with court proceedings – whether this amounted to coercion – meaning of coercion – no negation of choice or freedom to act – claim entirely misconceived.

External link Mackinnon as plaintiff representative of 153 plaintiff group members v Partnership of Larter, Jones, Miraleste Pty Ltd t/as USG Partner and Johnson, t/as "STC Sports Trading Club" (No 7) [2019] NSWSC 103
Justice Stevenson (18 February 2019)

Catchwords

CONSUMER LAW – misleading or deceptive conduct – whether fifth and twelfth defendants made representations about scheme which were misleading or deceptive – whether those defendants liable to investors on that or other bases

BANKRUPTCY ...

PARTNERSHIP ...

NSW Civil and Administrative Tribunal

External link Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39
Member P French (3 May 2019)

Catchwords

MOTOR VEHICLES – failure to comply with the guarantee as to acceptable quality – major failure – where motor vehicle was rejected by consumer – whether motor dealer is still entitled to elect to repair the motor vehicle to remedy the failure – whether reconstitution of the motor vehicle with a new engine is a ‘repair’

Victoria (Consumer cases)

Victorian Supreme Court

External link RJB Wolfe Pty Ltd v Mornington Peninsula Eye Clinic Pty Ltd [2019] VSC 29
Justice Sifris (8 February 2019)

Catchwords

TRADE PRACTICES – Misleading or deceptive conduct – Passing off – Use of name ‘Mornington Peninsula Eye Clinic’ – Established business called ‘Peninsula Eye Centre’ – Whether defendants made false representation as to existence of a connection or affiliation with the business of the plaintiff – Where business names use descriptive or functional terms – Plaintiff had not established and maintained distinctive reputation in its business name – Ophthalmologists, optometrists, general practitioners and patients are not likely to be misled into believing that practice of first defendant is associated with that of the plaintiff – Competition and Consumer Act 2010 (Cth) Sch 2 s 18.

Vic County Court

External link Manicured Muttz Pty Ltd v Roycar Investments Pty Ltd and Roy Smith [2019] VCC 64
Judge Marks (7 February 2019)

Catchwords

CONTRACT – Purchaser agreed to buy a business on terms contained in a written agreement – Purchaser walked away from the business when money was still owing to the vendor under the agreement – Purchaser offered to vary the agreement on terms such that purchaser would no longer owe any money under the agreement – Whether variation offer was accepted by the conduct of the vendor – whether objective bystander would conclude from vendor’s conduct that it had accepted the variation offer, and conveyed that acceptance to purchaser – Held: Offer not accepted.

MISLEADING AND DECEPTIVE CONDUCT - Whether vendor misrepresented the profitability of the business to the purchaser and this induced the purchaser to buy the business – Held: No.

Victorian Civil and Administrative Tribunal (VCAT)

External link Sutcliffe v Stenholm Holdings Pty Ltd (Civil Claims) [2019] VCAT 141
D Buljan, Member (1 February 2019)

Catchwords

Contract for the provision of motor vehicle storage facilities - claimed breaches of terms of contract regarding agreed monthly storage fees and location of motor vehicles - claimed breaches of consumer guarantees due to damaged paintwork and missing car parts - whether oral agreement constitutes standard form contract under unfair contract provisions - Australian Consumer Law sections 23, 24, 25, 26, 27, 59 and 60 - counterclaim for unpaid storage fees - disposal of uncollected goods - whether service provider entitled to dispose of uncollected motor vehicle - Part 4.2 Australian Consumer Law and Fair Trading Act 2012 (Vic).

External link Ellard v Wynstan Designs Pty Ltd (Civil Claims) [2019] VCAT 47
Deputy President I Lulham (11 January 2019)

Catchwords

Purchase of awnings for a domestic dwelling – preliminary question of whether the Respondent supplier engaged in misleading and deceptive conduct in representing the goods that it was offering to supply – section 18 of the Australian Consumer Law – analysis of the evidence – no misleading conduct – further hearing to be scheduled on other issues

 

Western Australia (Consumer cases)

WA Supreme Court

External link Ardizzone v Valentino Nominees Pty Ltd [2019] WASC 55
Justice Archer (27 February 2019)

Legislation

Included consideration of s 18 of the Australian Consumer Law

Catchwords

Breach of contract - Vendor's warranty - General Conditions - Requirement made by governmental authority - Misleading conduct by non-disclosure - Reasonable expectation of disclosure - Causation - Apportionment where one wrongdoer received a substantial benefit - Notice declaring an environmentally sensitive area - Threatened ecological community - 'Determined'