Contracts

Baca v Union Standard International Group

Steven Cominos appeared for the Respondent, a margin FX issuer, in an international arbitration involving a claim brought by a former client. The Respondent was successful in upholding its decision to confiscate the claimant’s profits relying on the terms of its product disclosure statement. Those terms permitted the confiscation of profits due to the claimant having engaged in price latency arbitrage trading and its failure to disclose its use of plug-in software when executing margin FX trades on the Respondent’s platform. All the claimant’s allegations of breaches of the Corporations Act by the Respondent and that the relevant contractual terms were ‘unfair terms’ under the ASIC Act were also rejected.

Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546

From the Supreme Court of New South Wales:

BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach

Michelle McMahon was led by Andrew Pickles SC for the plaintiffs.

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd [2016] FCAFC

INSURANCE - operation of s 54 of Insurance Contracts Act 1984 (Cth) on claim for contribution between the insurers where the second policy would respond to claim by insured invoking s 54 -whether s 54 applied to the claim by the insured - whether the operation of s 54 meant the appellant was not able to refuse to pay the claim made by the insured - whether the respondent insurer could set up putative liability of the appellant to the insured as a basis for a claim for contribution by it - appeal dismissed

Tim D. Castle appeared for the respondent.

Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97

CONTRACT – sale of business – vendor entitled to interest on outstanding contract price unless in default – whether vendor in default by allegedly failing to make certain adjustments – CONTRACT – sale of business – vendor obliged to assist purchaser in certain respects – whether breach of contract –whether obligation required unilateral assistance absent request from purchaser – DAMAGES – whether evidence of causation and loss sufficient – PROCEDURE – whether new argument can be raised for first time on appeal

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave

Robert Angyal SC appeared for the successful appellant.

Helensburgh Property Management Pty Ltd v Brady [2016] NSWSC 253

DAMAGES – where the defendant in breach of contract in poaching clients during and after employment with plaintiff – whether plaintiff entitled to damages assessed on basis of diminution in value of rent roll – whether clients would have left the plaintiff irrespective of defendant’s breach – assessment on basis of lost commissions

Richard Parsons appeared for the defendant.

Menzies v Paccar Financial Pty Ltd [2016] FCA 400

ANSHUN ESTOPPEL - Whether applicants precluded by Anshun estoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success

David Rayment appeared for the finance company, PACCAR Financial Pty Ltd instructed by Mills Oakley Solicitors.

 

Diao v Cohen [2016] NSWSC 96

CONTRACT – Agreement – Subject to contract – Whether parties intended to be immediately bound - No written agreement signed as contemplated – Held, no contract

RESTITUTION – Moneys had and received – Failure of consideration – Change of position defence – Whether inequitable to require recipient to pay

Richard Parsons appeared for the successful plaintiff

Jewelsnloo Pty Ltd v Sengos (No 2) [2016] NSWSC 61

TRADE AND COMMERCE – contract to purchase business – vendors made misrepresentation to the plaintiff concerning the turnover of the business – whether plaintiff relied upon the representation in entering into the contract to purchase the business – held plaintiff did not rely upon misrepresentation
  
TRADE AND COMMERCE – vendors had benefit of restraints of trade deed with prior vendor that prevented prior vendor from competing with vendors – whether prior vendor had made misrepresentation to the plaintiff concerning intention to compete with the plaintiff – whether prior vendor and vendors had made misrepresentations to the plaintiff concerning the subsistence of the deed and the plaintiff’s entitlement to the benefit of the deed – held representations not made – whether prior vendor and vendors had made representations to the plaintiff by silence by failing to inform the plaintiff that the vendors had released the prior vendor’s obligations under the deed – held representations not made
  
INTELLECTUAL PROPERTY – passing off – whether business had necessary goodwill or commercial reputation – goodwill or commercial reputation established – whether ordinary customers would be deceived by conduct of relevant defendants – conduct of relevant defendants found to be passing off
  
RESTITUTION – plaintiff claimed order setting aside purchase of business on ground that plaintiff entered into the contract because of misleading and deceptive conduct by vendors – plaintiff claimed order for rescission under s 243 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – plaintiff delayed in claiming order – plaintiff continued to operate business – plaintiff did not elect to rescind or offer to return business to vendors – plaintiff would not have been entitled in any event to an order setting aside the purchase as restoration of the status quo had become impossible because of plaintiff’s actions
  
DAMAGES – misleading or deceptive conduct – plaintiff not entitled to damages as claims dismissed – consideration of plaintiff’s claim for damages equal to the purchase price paid by the plaintiff for the business – plaintiff chose not to tender evidence of the difference between the purchase price and the market value of the business – applicable principles considered – plaintiff would not have been entitled to damages claimed in any event because the evidence established that the business had a value at the date of purchase and the plaintiff did not establish that it lost the benefit of the entirety of the purchase price
  
DAMAGES – passing off – Exemplary, punitive and aggravated damages – plaintiff claimed damages instead of an account of profits – plaintiff did not prove it suffered any loss caused by the passing off – plaintiff not entitled to compensatory damages – plaintiff claimed exemplary damages for tort of passing off – applicable principles considered – plaintiff not entitled to exemplary damages

David Jay appeared for the successful defendants

Helensburgh Property Management Pty Ltd v Brady [2015] NSWSC 1861

CONTRACT – where defendant employed as property manager in real estate agency – where employment agreement included obligations in respect of confidential information – whether defendant in breach in poaching clients, setting up business in competition and misusing confidential information whilst still employed with plaintiff. 
  
RECTIFICATION – where post-employment restraint in original contract of 6 months and 15 kilometres from office – where new contract included different restraint – 12 months in area not including the relevant office - whether mistake – whether agreement should be rectified.

Richard Parsons appeared

Nelmeer Ashfield Pty Ltd v Farah [2015] NSWCATAP 252

CONTRACT - catering services agreement in licensed hotel premises – dispute over termination – declaratory and injunctive relief

CONTRACTS - Agreement not rendered void and unenforceable on account of no approval of Independent Liquor and Gaming Authority – term of 5 years not inconsistent with terms of any head lease – not a shop used wholly or predominantly for the carrying on of a business on behalf of hotel – certificate under s 16 of Retail Leases Act not condition precedent to agreement

Westpac Banking Corporation v Kekatos [2015] NSWSC 1629

PRACTICE AND PROCEDURE – plaintiff’s consent to default judgment being set aside given on the basis of defendant’s sworn evidence which she subsequently admitted was false – application by plaintiff to have default judgment reinstated – circumstances in which a court sets aside orders entered by consent – whether plaintiff entitled to summary judgment – whether bona fide defence on the merits – effect of defendant’s failure to give sworn evidence in opposition to plaintiff’s application

PRACTICE AND PROCEDURE – motion to set aside interlocutory consent order to be brought in the original proceedings to avoid multiplicity of proceedings

CONTRACT – consent orders handed up to resolve interlocutory notice of motion not enforceable contract

CONTRACTS REVIEW ACT – relevance of benefit to borrower from discharge of earlier mortgage to secure loans admitted to be owing – no evidence to displace lender’s entitlement to possession and judgment based on portion of advance that conferred incontrovertible benefit on borrower

Tim Castle appeared for Westpac Banking Corporation.

Capogreco v Rogerson [2015] NSWSC 1371

MISLEADING OR DECEPTIVE CONDUCT – where plaintiffs purchased shares in racehorse – whether defendant made representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect.

CONTRACT – where owners authorised the defendant to enter the horse in the Magic Millions auction – whether the defendant was authorised to sell the plaintiffs shares at a private sale without notice to the plaintiffs.

Plaintiffs’ claims against the defendant for misleading or deceptive conduct dismissed. Plaintiffs entitled to declarations in relation to their respective ownership of the shares in the horse and to an account from the second defendant.

Wu v Li [2015] FCAFC 109

CONTRACTS – appeal from decision of a single judge of the Federal Court of Australia – construction of contract – shareholder agreements – claim by respondent of entitlement under indemnity provisions – meaning of “member loan” in indemnity provisions – whether primary judge erred in quantification of respondent’s entitlement – where respondent alleged misleading and deceptive conduct by appellant – whether primary judge erred in holding that respondent had not proved his loss – where respondent alleged breach of contract by appellant – whether primary judge erred in finding no contravention of shareholder agreements

EVIDENCE – when statement in an agreement or contractual document will constitute admissible evidence of an admission

COSTS – where respondent succeeded on one claim but not others – whether the primary judge erred in ordering appellant to pay respondent’s costs

Dr Chris Ward appeared for the appellants

Lambert Leasing Inc. v QBE Insurance Ltd [2015] NSWSC 750

CONTRACTS – contracts of employment – misleading or deceptive conduct – ss 52 and 53B of Trade Practices Act 1974 (Cth) – retention incentive scheme – whether employer disclosed true nature of scheme to employees – whether alleged non-disclosure of scheme amounted to deceit or negligence on part of employer – whether employee enjoyed contractual rights to bonus or incentive – relevance of discretion to award bonus or incentive – whether implied term that such discretion cannot be exercised capriciously, arbitrarily or unreasonably – whether withholding of incentives from employees a discretion so exercised – whether implied term of mutual trust and confidence – application of Commonwealth Bank of Australia v Barker[2014] HCA 32; (2014) 88 ALJR 84 – whether scheme induced employees not to seek alternative employment – whether incentives available to employees upon retrenchment

CONTRACTS – contracts of employment – seconded employees – application and interpretation of secondment policy – whether seconded employees in temporary or permanent position

CONTRACTS – contracts of employment – termination – whether reasonable notice given – meaning of “reasonable notice” – whether change in employee duties over time effects contractual variation of notice provisions – application of Quinn v Jack Chia (1991) 1 VR 567

CONTRACTS – contracts of employment – wrongful dismissal claims – whether employer redundancy policy forms part of terms and conditions of contract of employment – construction and interpretation of redundancy policy – whether application of policy varies over time – whether employee secondment affects application of redundancy policy – whether payment in lieu of notice acceptable

DAMAGES – measure of damages – breach of contract of employment – damages in respect of contractual bonuses – quantification of the value of a lost opportunity

TORTS – negligence – whether representatives of employer owed duty of care to employees – whether employer acted with reasonable care – quantification of loss on the part of employee

Pandeli v Hou [2015] NSWCATAP 58

APPEAL - questions of law - breach of warranty under Home Building Act,1989 (NSW) - whether evidence discharged burden to prove breach of statutory warranties

CONTRACT - terms of contract between the parties - work to be done - objective assessment of contractual terms - work done by contractor - warranty to undertake work in proper and workmanlike manner

EVIDENCE - no adequate evidence as to quantum of appellants’ loss - remittal for determination on proper evidence.

Murphy v Westpac Banking Corporation [2014] FCA 1104

CONTRACTS – contracts of employment – misleading or deceptive conduct – ss 52 and 53B of Trade Practices Act 1974 (Cth) – retention incentive scheme – whether employer disclosed true nature of scheme to employees – whether alleged non-disclosure of scheme amounted to deceit or negligence on part of employer – whether employee enjoyed contractual rights to bonus or incentive – relevance of discretion to award bonus or incentive – whether implied term that such discretion cannot be exercised capriciously, arbitrarily or unreasonably – whether withholding of incentives from employees a discretion so exercised – whether implied term of mutual trust and confidence – application of Commonwealth Bank of Australia v Barker[2014] HCA 32; (2014) 88 ALJR 84 – whether scheme induced employees not to seek alternative employment – whether incentives available to employees upon retrenchment

CONTRACTS – contracts of employment – seconded employees – application and interpretation of secondment policy – whether seconded employees in temporary or permanent position

CONTRACTS – contracts of employment – termination – whether reasonable notice given – meaning of “reasonable notice” – whether change in employee duties over time effects contractual variation of notice provisions – application of Quinn v Jack Chia (1991) 1 VR 567

CONTRACTS – contracts of employment – wrongful dismissal claims – whether employer redundancy policy forms part of terms and conditions of contract of employment – construction and interpretation of redundancy policy – whether application of policy varies over time – whether employee secondment affects application of redundancy policy – whether payment in lieu of notice acceptable

DAMAGES – measure of damages – breach of contract of employment – damages in respect of contractual bonuses – quantification of the value of a lost opportunity

TORTS – negligence – whether representatives of employer owed duty of care to employees – whether employer acted with reasonable care – quantification of loss on the part of employee