Aero South Pacific Pty Ltd v Byrt

SUPREME COURT OF QUEENSLAND

CITATION:

Aero South Pacific Pty Ltd v Byrt [2012] QSC 62

PARTIES:

AERO SOUTH PACIFIC PTY LTD
ACN 114 467 060     
(Plaintiff)
v
TERENCE JOHN BYRT   
(Defendant)

FILE NO:

BS 2624 of 2009

DIVISION:

Trial 

PROCEEDING:

Civil

DELIVERED ON:

16 March 2012

DELIVERED AT:

Brisbane

HEARING DATES:

30-31 January; 1–3 and 6 February 2012

JUDGE:

Fryberg J

ORDERS:

1.         Judgment for the plaintiff on the claim.

2.         Counterclaim dismissed.

CATCHWORDS:

Contracts – General contractual principles – Discharge, breach and defences to action for breach – Repudiation and non-performance – Repudiation – Application to leases – Repossession – Failure to pay rent – Damages for loss of bargain

Guarantee and indemnity – The contract of guarantee – Construction and effect – Extent of liability – Miscellaneous guarantees – Damages for loss of bargain

Trade Practices Act 1974 s 51AC, s 52, s 87

Canon Australia Pty Ltd v Patton[2007] NSWCA 246, followed
GumlandProperty Holdings Pty Limited vDuffy Bros Fruit Market (Campbelltown) Pty Limited [2008] HCA 10; (2008) 234 CLR 237, cited
Progressive Mailing House Pty Ltd v Tabali Pty Limited[1985] HCA 14; (1985) 157 CLR 17, cited
Shevill v Builders Licensing Board[1982] HCA 47; (1982) 149 CLR 620, distinguished

COUNSEL:

AW Duffy for the plaintiff
R A Perry SC and M Henry for the defendant

SOLICITORS:

Warlow Scott the plaintiff
Clark Kann for the defendant

1. FRYBERG J: This claim is an unfortunate sequel to the demise in 2009 of a regional airline in Queensland operated by Macair Airlines Ltd (“Macair”). The plaintiff (“Aero”) claims against the defendant under a guarantee signed by the defendant in August 2008 by which the defendant guaranteed the performance by Macair of its obligations under two aircraft hire agreements. Mr Byrt resists the claim on the ground that the guarantee is liable to be set aside under s 87 of the Trade Practices Act 1974 either for misleading and deceptive conduct in breach of s 52 or unconscionable conduct in breach of s 51AC and he seeks that relief by counterclaim. He also raises a number of issues which go to the existence or extent of Macair's liability to Aero.

Background

1. Mr Andrew Reid is a man with varied interests.  His family had pastoral holdings in northern New South Wales and he was initially propelled toward a career on the land.  Despite this, he chose to join the Royal Australian Air Force, where he qualified as a pilot.  He resigned in 1983.  When his family acquired a cattle station near Kowanyama in North Queensland, they wished to have an aircraft for transport between their various properties.  The family company purchased a Fairchild Metro 23 with the registration mark VH-MYI (“MYI”).  When not required by the company, the aircraft was hired to an air services operator.  In 2001, the company leased it to Macair.  Mr Reid pursued other interests until 2005, when he and his wife acquired Aero.

1. Aero operated as an aircraft…