Berry v CCL Secure Pty Ltd

In the Federal Court, Dr Berry and GSC sued CCL Secure Pty Ltd (Securency) for engaging in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act, and unconscionable within the meaning of section 51AB. Dr Berry and GSC alleged that Securency engaged in misleading or deceptive conduct by making certain representations to Dr Berry about the renewal of an agency agreement, and the establishment of an opacification plant in Nigeria. They also alleged that Securency engaged in unconscionable conduct by inducing Dr Berry to sign a letter terminating the agency agreement on the basis of these representations.

The central issue before the Court was whether Securency made certain representations to Dr Berry that induced him to sign a letter terminating the agency agreement. If Securency did make these representations, the Court had to determine whether they constituted misleading or deceptive conduct and/or unconscionable conduct. The Court also had to consider whether Securency would have exercised its powers under the agreement to unilaterally terminate the agency agreement without cause if Dr Berry had not signed the termination letter.

The Court found that Securency did make the representations to Dr Berry that he alleged. The Court was satisfied that Mr Chapman, a Securency representative, made two representations to Dr Berry on 24 February 2008. The first was that if Dr Berry and GSC agreed to terminate the agency agreement, the existing terms would continue and the parties would make a new agreement on those terms. The second was that if Dr Berry signed a second document, being a memorandum of understanding or partnership agreement for the goal of establishing an opacification plant in Nigeria, that Securency had prepared, Mr Chapman would cause it to be sent to Securency in Australia and it would execute that document. The Court found that the evidence of Dr Berry concerning the second representation entitled him and GSC to relief, notwithstanding that it was not in exactly the same words as the pleading. The Court concluded that Dr Berry and GSC were entitled to relief.

The Court ordered that the parties file and serve agreed draft orders to give effect to these reasons on or before 29 January 2018. If the parties could not agree, they were to file written submissions in support of the orders they proposed, limited to five pages. The proceeding was listed for case management on 5 February 2018 at 9.30am.