Brand v Monks

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.