Brimaud, Kenneth Maurice v Boston Securities Entertainment Investments Pty Ltd

[1998] FCA 1393

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 996  of  1996

BETWEEN:

KENNETH MAURICE BRIMAUD
Applicant

AND:

BOSTON SECURITIES ENTERTAINMENT INVESTMENTS PTY LIMITED
First Respondent

CINEMA PLUS LIMITED
Second Respondent

GARY BLOM
Third Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	16 OCTOBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Judgment be entered for the Applicant against the First and Second Respondents in the sum of $690,339.80 comprising:

(a)damages for the loss of 440,000 shares in the Second Respondent valued at $1.62 per share; together with

(b)damages for the loss of a dividend on those shares paid in 1997 of $11,440 which together with interest thereon up to the date of judgment of $905.80 totals $12,345.80; together with

(c)an adjustment by deducting $79,806 and adding $45,000 to the damages.

1. The proceedings against the Third Respondent be dismissed with no order as to his costs.

1. The First and Second Respondents pay 15 per cent of the Applicant’s costs of the proceedings as agreed or assessed.

1. Upon the First and Second Respondents doing all of:

(a)paying to the Applicant $440,000 of the judgment monies within 14 days hereof;

(b)providing security for the balance of the judgment monies either by payment thereof into Court of by providing an irrevocable bank guarantee;

(c)filing an appeal in accordance with the Rules of Court; and

(d)undertaking to prosecute that appeal with all reasonable diligence;

there be a stay in respect of the balance of the judgment pending the determination of that appeal.

1. The First and Second Respondents pay the Applicant’s costs of 16 October 1998.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 996  of  1996

BETWEEN:

KENNETH MAURICE BRIMAUD
Applicant

AND:

BOSTON SECURITIES ENTERTAINMENT INVESTMENTS PTY LIMITED
First Respondent

CINEMA PLUS LIMITED
Second Respondent

GARY BLOM
Third Respondent

JUDGE:	EMMETT J
DATE:	16 OCTOBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  When this matter was before me on 9 October 1998 I indicated that I was disposed to assess damages on the basis of the market price of shares in Cinema Plus on the day after the expiration of the escrow period.  I now have before me evidence that indicates that on 12 October 1998, being the first day after the expiration of the escrow period, 9970 shares were traded on ASX.  Shares in Cinema Plus closed at $1.62, which was the lowest price during the day.  The shares opened at $1.70, which was the highest price during the day.  That evidence indicates that, if anything, the market was falling.  It also indicates that the volume was minuscule when compared with the volume of shares which is under consideration.

I have no evidence before me as to what might have happened had 440,000 shares been put onto the market.  I would expect that in a falling market that would have had a depressing effect.  It is not appropriate to speculate as to whether or not it would have depressed the market below the lowest price.  However, in endeavouring to determine what monetary amount would put Mr Brimaud in the position he would have been in had there been performance of the 8 May Agreement, I consider that the appropriate figure to adopt is $1.62.  Accordingly, I consider that damages should be assessed on the basis that the market price of the shares as at the date of judgment is $1.62.

It follows from what I have said that the orders which I make are the orders in the short minutes which I have initialled and dated with today's date which will be placed with the papers.  In the circumstances which gave rise to the need for today’s hearing, I order that the first and second respondents pay the applicant's costs of today.

I certify that this page and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             16 October 1998

Counsel for the Applicant:	G.K. Downes QC with R.A. Campbell
Solicitor for the Applicant:	Cordato Partners
Counsel for the Respondent:	A.J.L. Bannon SC with D.B. Studdy
Solicitor for the Respondent:	Gilbert & Tobin
Date of Hearing:	16 October 1998
Date of Judgment:	16 October 1998