Reported Decision:
54 IPR 515
New South Wales
Court of Appeal
CITATION: ADC v WHITE [2001] NSWCA 9 FILE NUMBER(S): CA 40511/99; 40101/96 consolidated HEARING DATE(S): 5-8 June 2000 inclusive JUDGMENT DATE:
9 February 2001PARTIES :
AUSTRALIAN DEVELOPMENT CORPORATION PTY LTD v WHITE CONSTRUCTIONS (ACT) PTY LTD (in liq) & ANOR
AUSTRALIAN DEVELOPMENT CORPORATION PTY LTD v WHITE CONSTRUCTIONS LIMITED & ANORJUDGMENT OF: Handley JA at 1; Sheller JA at 122; Stein JA at 123
LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT
FILE NUMBER(S) :CommD 55041/91 LOWER COURT
JUDICIAL OFFICER :Giles CJCommD
COUNSEL: D F Jackson QC/S A Kerr (Appellant ADC)
B W Rayment QC/S Goldstein/G R Kennett (Respondent 1 - White Const Ltd)
A Archibald QC/M A Ashurst (Respondent 1 White Const ACT in liq)
B W Rayment QC/S Goldstein/G R Kennett (Respondent 2 Exxon Coal - formerly White Indus)SOLICITORS: Colin Biggers & Paisley (Appellant)
Mallesons Stephen Jaques (Respondents 1 and 2 White Const 40101/96 and Exxon 40511/99)
Deacon Graham & James (Respondent 1 White Const ACT in liq 40511/99)CATCHWORDS: INDUCEMENT OF BREACH OF CONTRACT - proof of intention to induce breach - NEGLIGENT MISREPRESENTATION - effect of non disclosure - TRADE PRACTICES - misleading and deceptive conduct - causation - VICARIOUS LIABILITY - employees appointed directors of other company LEGISLATION CITED: Trade Practices Act 1974 (Cth) CASES CITED: Crowley v Glissan (1905) 2 CLR 402
Bunning v Cross (1978) 141 CLR 54
Siu Win Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199
Andrews v Nominal Defendant (1968) 70 SR (NSW) 419
Hexyl Pty Ltd v Construction Engineering (Australia) Pty Ltd (21/6/84 unrep)
Construction Engineering (Aust) Pty Ltd v Hexyl Pty Ltd (1985) 155 CLR 541
Petersen v Moloney (1951) 84 CLR 91
March v Stramere (E & MH) Pty Ltd (1991) 171 CLR 506
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Banque Keyser Ullmann SA v Westgate Insurance Co Ltd [1991] 2 AC 249
Said v Butt [1920] 3 KB 497
O'Brien v Dawson (1941) 41 SR (NSW) 295
Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1991] 1 AC 187
Dairy Containers Ltd v Auditor-General [1995] 2 NZLR 30
New Zealand Guardian Trust Co Ltd v Brooks [1995] 1 WLR 96 PC
Zuijs v Wirth Bros Pty Limited (1955) 93 CLR 561
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Century Insurance Company Limited v Northern Ireland Road Transport Board [1942] AC 509
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1
Camden Nominees Ltd v Forcey [1940] Ch 352
Quinn v Leathem [1901] AC 495
Lumley v Gye (1863) 2 E & B 216
D C Thomson & Co Ltd v Deakin [1952] Ch 646
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Details
- AGLC
- ADC v White [2001] NSWCA 9
- Case
- [2001] NSWCA 9
- Decision Date
CaseChat Overview and Summary
The parties to this appeal were ADC (the appellant) and White (the respondent). The dispute concerned allegations of inducement of breach of contract, negligent misrepresentation, and misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth). The matter came before the New South Wales Court of Appeal.
The Court of Appeal was required to determine whether ADC had intentionally induced a breach of contract by White, whether White had made negligent misrepresentations to ADC through non-disclosure, and whether ADC's conduct constituted misleading or deceptive conduct under the *Trade Practices Act*. Furthermore, the Court considered the issue of vicarious liability concerning employees appointed as directors of another company.
The Court found that ADC had failed to prove the necessary intention to induce a breach of contract. Regarding negligent misrepresentation, the Court held that non-disclosure could constitute a misrepresentation where there was a duty to disclose, but this was not established on the facts. On the *Trade Practices Act* claim, the Court found that while ADC's conduct was misleading or deceptive, it had not caused the loss claimed by White. The Court also addressed the principles of vicarious liability in the context of directors appointed by an employer to another entity, finding no basis for liability in this instance.
The appeals and cross-appeal were dismissed, with costs awarded to the respondent.
The Court of Appeal was required to determine whether ADC had intentionally induced a breach of contract by White, whether White had made negligent misrepresentations to ADC through non-disclosure, and whether ADC's conduct constituted misleading or deceptive conduct under the *Trade Practices Act*. Furthermore, the Court considered the issue of vicarious liability concerning employees appointed as directors of another company.
The Court found that ADC had failed to prove the necessary intention to induce a breach of contract. Regarding negligent misrepresentation, the Court held that non-disclosure could constitute a misrepresentation where there was a duty to disclose, but this was not established on the facts. On the *Trade Practices Act* claim, the Court found that while ADC's conduct was misleading or deceptive, it had not caused the loss claimed by White. The Court also addressed the principles of vicarious liability in the context of directors appointed by an employer to another entity, finding no basis for liability in this instance.
The appeals and cross-appeal were dismissed, with costs awarded to the respondent.
Orders
Orders of the court
Appeals dismissed with costs. Cross-appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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