Brand v Monks [2009] NSWSC 1454 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
29 and 30 September 2009 and 1, 2, 12 and 13 October 2009
JUDGMENT DATE :
21 December 2009
JURISDICTION:
Equity Division
JUDGMENT OF:
Ward J
DECISION:
Plaintiff claim dismissed with costs.
CATCHWORDS:
CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - defendant contracted to prepare development application for subdivision of plaintiffs’ land - defendant agreed to keep confidential information obtained by her in providing commissioned services - defendant reported clearing activity on land to council - whether plaintiff breached confidentiality clause of contract - whether public interest in defendant’s disclosure to council - held that information disclosed to council not confidential and not within ambit of clause - public interest in disclosure not established - CONTRACTS - general contractual principles - construction and interpretation of contracts - implied terms - whether implied term that defendant, if she formed view that development application would not succeed, would disclose that view to plaintiffs - whether defendant breached implied term - held that no implied term and, in any event, had such a term been implied, no evidence of breach - EQUITY - general principles - fiduciary obligations - whether defendant owed fiduciary obligation to council - relationship not within recognised categories of fiduciary relationships - held that no fiduciary obligations existed - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - consumer protection - unconscionable conduct - whether defendant engaged in unconscionable conduct in breach of s 43 of the Fair Trading Act 1987 (NSW) by making disclosures to council - held that defendant did not engage in unconscionable conduct as pleaded - PROCEDURE - pleading - particulars - in earlier version of statement of claim, plaintiffs had pleaded as material facts of unconscionable conduct claim, the defendant's non-disclosure to plaintiffs of communications with council and continued receipt of fees thereafter - as a result of amendment, those facts no longer pleaded in final statement of claim, but appear in particulars - had those facts been pleaded, plaintiffs’ claim may have been established, subject to whatever evidence defendant might have adduced - defendant made clear that only responding to case as pleaded - consideration of role of particulars - held that plaintiffs not able to succeed on ground of non-disclosure as material facts not pleaded.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Brand v Monks [2009] NSWSC 1454
Case
[2009] NSWSC 1454
Decision Date
CaseChat Overview and Summary
In the matter of Brand v Monks, the plaintiff sought to recover damages for the defendant's alleged breaches of contract and fiduciary obligations, as well as for unconscionable conduct under the Fair Trading Act 1987 (NSW). The dispute arose from a contract wherein the defendant was engaged by the plaintiffs to prepare a development application for the subdivision of their land. A term of the contract required the defendant to keep confidential any information obtained during the preparation of the application. The plaintiffs contended that the defendant breached the confidentiality clause by reporting clearing activity on the land to the council. Additionally, the plaintiffs claimed that the defendant breached an implied term to inform them if she formed the view that the development application would not succeed, and that she owed fiduciary obligations to the plaintiffs, which she failed to fulfil. Furthermore, the plaintiffs asserted that the defendant engaged in unconscionable conduct by making the disclosures to the council.
The court addressed several legal issues, including whether the information disclosed to the council was confidential and within the scope of the confidentiality clause. The court found that the information disclosed was not confidential and did not fall within the clause's ambit. The court also considered whether there was an implied term in the contract that the defendant would inform the plaintiffs if she believed the development application would not succeed, and whether such a term was breached. The court concluded that no such implied term existed, and even if it did, there was no evidence of a breach. Furthermore, the court examined whether the defendant owed fiduciary obligations to the plaintiffs, finding that the relationship did not fall within recognised categories of fiduciary relationships. Finally, the court considered whether the defendant engaged in unconscionable conduct by disclosing information to the council, but found that the defendant did not engage in such conduct as pleaded.
The court held that the defendant did not breach the confidentiality clause as the information disclosed was not confidential. The court also found that there was no implied term requiring the defendant to inform the plaintiffs if she believed the development application would not succeed, and no evidence of breach even if such a term existed. Additionally, the court ruled that the defendant did not owe fiduciary obligations to the plaintiffs. Regarding the unconscionable conduct claim, the court noted that the plaintiffs had not pleaded the relevant facts, which were contained in the particulars rather than the statement of claim. The court held that the plaintiffs could not succeed on the ground of non-disclosure as the material facts were not pleaded. The court dismissed the plaintiffs’ claims.
The court ordered the plaintiffs to pay the defendant's costs of the proceeding. The court found that the plaintiffs' claims were without merit and that the defendant had responded to the case as pleaded. The court held that the plaintiffs were not entitled to succeed on any of the grounds they advanced, and accordingly, ordered the plaintiffs to pay the defendant's costs of the proceeding.