Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd

In the case of Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd, the appellants, Carminco Gold & Resources Ltd, appealed against the decision of the primary judge, who found that there were contraventions of section 52 of the Trade Practices Act and that the relevant misrepresentations had been relied upon by the respondents, Findlay & Co Stockbrokers (Underwriters) Pty Ltd, to their loss. The primary judge ordered the respondents to pay damages in the sums of the two advances plus interest. The primary judge also found a breach of the contract which he described as an agreement where, in consideration of the respondents providing seed capital and a loan solely for the exercise of an option over the Summit Lake Mine, the appellants would issue shares to the respondents free of charge and provide security over all of the company's assets.

The appeal focused on the primary judge's contract finding, with the appellants contending that the respondents acted as an agent for investor-clients in making the advances and entering into the contract. The appellants argued that the respondents were not a party to the agreement, could not bring proceedings to enforce it or claim damages for its breach, and, as a mere agent, sustained no loss or damage for the purpose of section 82 of the Trade Practices Act. The respondents objected that the ground now sought to be raised on the appeal was not raised before the primary judge. However, the appeal must be dismissed regardless of this objection. The contract issue raised a question of objective intention, ascertaining whether the respondents entered into a personal engagement with the appellants and, if so, whether to the exclusion of their principals, or jointly and severally with them. The intention for which the Court looks is an objective intention of both parties, based on what two reasonable businessmen making a contract of that nature, in those terms and in those surrounding circumstances, must be taken to have intended.

The appeal was dismissed with costs.