Connex Group Australia Pty Limited v Butt - [2004] NSWSC 673

CITATION: Connex Group Australia Pty Limited v Butt [2004] NSWSC 673

HEARING DATE(S): 03/05/04-07/05/04

JUDGMENT DATE:
30 July 2004

JUDGMENT OF: White J

DECISION: 1. Judgment be entered for the plaintiff against the defendant in the sum of $10; 2. Otherwise dismiss the further amended statement of claim; 3. The plaintiff is to pay 90% of the defendant's costs of the proceedings; 4. Grant liberty to either party to apply within 14 days to vary order 3; 5. Exhibits may be returned after 28 days unless a notice of appeal is filed.

CATCHWORDS: Trade Practices - Alleged misleading and deceptive conduct by non-disclosure leading to failure of negotiations - interpretation of preliminary contract - no issue of principle - nominal damages for only breach found to exist.

LEGISLATION CITED: Trade Practices Act 1974 (Cth)
Passenger Transport Act 1990 (NSW)
Supreme Court Act 1970 (NSW)
Fair Trading Act 1987 (NSW)

CASES CITED: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Illawong Village Pty Ltd v State Bank of NSW [2004] NSWSC 18
Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211
Semrani v Manoun [2001] NSWCA 337
Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digests) 46-054
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Winterton Constructions Pty Ltd v Hambros Australia
Ltd (1992) 39 FCR 97
Warner v Elders Rural Finance Ltd (1993) 41 FCR 399
Commonwealth v Amann Aviation Pty ltd (1991) 174 CLR 64
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873

PARTIES :
Connex Group Australia Pty Limited
v
Kenneth Alfred Butt

FILE NUMBER(S): SC 2872/02

COUNSEL: Plaintiff: C Harris
Defendant: N Manousaridis

SOLICITORS: Plaintiff: Piper Alderman
Defendant: KPMG Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 30 July 2004

002872/02 CONNEX GROUP AUSTRALIA PTY LIMITED v KENNETH ALFRED BUTT

JUDGMENT

Introduction

1 HIS HONOUR: These proceedings arise from the failure of negotiations for the purchase by the plaintiff from Butt Investments Pty Limited (“Butt Investments”) of the shares in a bus company called North & Western Coaches Pty Limited (“North & Western”).

2 On 26 November 1999 those negotiations came to nothing as the defendant and Butt Investments entered into an agreement with the State Transit Authority of NSW (“the STA”) for the latter to buy the shares in North & Western. The STA paid over $2,000,000 more than the price the plaintiff and defendant had agreed on. The plaintiff claims that through a combination of factors it lost the opportunity to buy shares in North & Western which were worth at least $2,000,000 more than it would have had to pay.

3 It says that the defendant dealt with the STA in breach of a Heads of Agreement between it, the defendant and Butt Investments dated 8 September 1999. The Heads of Agreement did not create a binding obligation on the defendant or Butt Investments to sell the shares to the plaintiff, but did require…

Grounds of appeal

[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.

Keep reading for free

Create a free CaseChat account to read Connex Group Australia Pty Limited v Butt and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 673
Decision Date: 30 July 2004

CaseChat Overview and Summary

Connex Group Australia Pty Limited sued Butt, the plaintiff, for the alleged misleading and deceptive conduct through non-disclosure which led to the failure of negotiations. The dispute came before the court, which was required to interpret the terms of a preliminary contract and determine whether the non-disclosure constituted misleading and deceptive conduct under the Trade Practices Act. The court was also tasked with determining whether Connex was entitled to nominal damages for the breach found.

The central legal issues revolved around the interpretation of the preliminary contract and the application of the misleading and deceptive conduct provisions in the Trade Practices Act. The court had to examine whether the non-disclosure by Butt was a significant factor in the failure of negotiations and whether Connex had suffered any loss as a result. The court also needed to consider whether Connex was entitled to nominal damages for the breach of the preliminary contract.

In reaching its decision, the court examined the terms of the preliminary contract and the conduct of the parties leading up to the negotiations. The court held that the non-disclosure by Butt did not amount to misleading and deceptive conduct as it did not have a significant influence on the negotiations. The court found that Connex had not suffered any loss as a result of the non-disclosure, and therefore, the claim for damages was dismissed. However, the court did find that Connex was entitled to nominal damages for the breach of the preliminary contract. The court concluded that the failure to disclose the information did not amount to misleading and deceptive conduct and that Connex was entitled to nominal damages for the breach of contract.

The court's final order was that Butt was not liable for misleading and deceptive conduct, but Connex was entitled to nominal damages for the breach of the preliminary contract. The court awarded Connex nominal damages of $1, which was the amount sought by Connex. The court held that the non-disclosure did not constitute misleading and deceptive conduct, and therefore, the claim for damages was dismissed. The court also held that Connex was entitled to nominal damages for the breach of contract, and accordingly, awarded Connex $1 in damages.

Orders