Credit Suisse First Boston v Sports Mondial Australia Pty Ltd

[2003] NSWSC 9

CITATION:	Credit Suisse First Boston v Sports Mondial Australia Pty Ltd [2003] NSWSC 9
HEARING DATE(S):	18/12/02,19/12/03,20/12/03
JUDGMENT DATE:	7 February 2003
JUDGMENT OF:	Gzell J
DECISION:	Judgment for plaintiff for $892,500 together with interest.
CATCHWORDS:	CONTRACTS - General Contractual Principles - Implied Terms - Performance within a reasonable time - Representations that 119 tickets to the World Cup soccer final would be delivered five to seven days before the event - Reasonable time expired five days before the final - Unblocked tickets not in breach of implied term of reasonable fitness for purpose - no secondary contract in substitution that tickets be sold and sale price accounted to plaintiff - TRADE PRACTICES - Consumer Protection - Statement false with respect to defendant but true of affiliated group not causative of relevant loss under Trade Practices Act 1974 (Cth) s 52 - Defendant received second instalment of purchase price when reasonable grounds of which it ought reasonably to have been aware for believing that it would not be able to supply the tickets within a reasonable time in contravention of s 58
LEGISLATION CITED:	Trade Practices Act 1974 (Cth)
CASES CITED:	Canning v Temby (1905) 3 CLR 419 at 424 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 567-568 Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 at 576 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525
PARTIES :	Credit Suisse First Boston (Hong Kong) Limited - Plaintiff Sports Mondial Australia Pty Limited - Defendant
FILE NUMBER(S):	SC 50148/02
COUNSEL:	Mr A S Bell for the Plaintiff Mr I M Jackman SC with Mr S Goodman for the Defendant
SOLICITORS:	Mallesons Stephen Jaques for the Plaintiff Snelgrove Boyle Neilson Solicitors for the Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

GZELL J

FRIDAY 7 FEBRUARY 2003

50148/02 CREDIT SUISSE FIRST BOSTON (HONG KONG) LTD v SPORTS MONDIAL AUSTRALIA PTY LTD

JUDGMENT

1 The plaintiff, (“CSFB”), purchased from the Defendant, (“SMA”), 119 category 1 tickets for the World Cup soccer final played in Yokohama, Japan on Sunday 30 June 2002. The tickets were not delivered to CSFB by 8.30pm, Tokyo time, on Tuesday 25 June 2002 and on Wednesday 26 June 2002, CSFB terminated the contract and acquired tickets from another source. CSFB sued for damages for breach of contract, restitution and damages under the Trade Practices Act 1974 (Cth), s 82. Since the conduct alleged to have given rise to this last claim took place outside Australia, a certificate of the Treasurer was required under s 5(3). That certificate was provided.

2 SMA had provided to an Australian affiliate of CSFB, tickets to the Olympic Games and to a Rugby Test Match in Australia. In May 2001, Kevin Peter Harris, the general manger of SMA, quoted prices to the Australian affiliate for the semi-finals and final of the World Cup. The price per ticket for the final was $7,500. Mr Harris was asked to contact Phoebe Wong who was an assistant event planner with CSFB.

3 Following a telephone conversation with her, Mr Harris sent a booking form, standard terms and conditions and some promotional material to Ms Wong by facsimile. Ms Wong and Mr Harris had a series of telephone conversations. Ms Wong was informed that the seats would not be in one block. SMA would do its best to provide blocks as large as possible and pairs of seats would be the minimum. Ms Wong was also informed that the tickets should be delivered about one week before the game.

4 Niral Maru was a compliance officer in the legal and compliance division of CSFB. He perused the booking form and terms and conditions and marked up amendments thereto. He approved the agreement subject to acceptance of his amendments and the obtaining of evidence that SMA had authority to sell the tickets. Ms Wong sent Mr Harris the marked up changes to the terms and conditions and Mr Harris sent back amended booking forms and terms and conditions reflecting the requested changes.

5 In response to Mr Maru’s request for evidence of authority to sell the tickets, Mr Harris sent an email to Ms Wong on 8 June 2001 in the following terms:

“There are no agents appointed by FIFA anywhere in the world, however, SMA Pty Ltd works very closely with various football associations universally and have done for many years, SMA provides Flights and Hotel accommodation (which we are officially bonded) for Federations at different major tournaments world wide, which is set up under a sponsorship deal with the different Federations, for this SMA receives an allocation of tickets.”

While no authority was demonstrated by this response, Mr Maru was satisfied. He was concerned that CSFB was not dealing with touts or scalpers and the email contributed to his satisfaction and his approval.

6 One of the changes Mr Maru requested was the inclusion of the statement: “Sports Mondial Australia Pty Ltd represents that it has all necessary authorisations and approvals to sell the above mentioned tickets”. This provision was not included in the contract. Mr Maru was unaware of this fact. He said he would need to know why it was deleted before he could comment.

7 In cross-examination, Mr Harris conceded that the statements in the email were false. For large overseas events, SMA notified its affiliated company in the United Kingdom, Sports Mondial Plc (“SMP”), of an order and the tickets were obtained by it. None of the matters in the email related to SMA. They related to SMP. Mr Harris said the reference to SMA rather than Sports Mondial generally was a mistake on his part.

8 In so far as the email contained representations as to future matters, CSFB relied upon the Trade Practices Act 1974 (Cth), s 51A. CSFB claimed that the email contained representations that were misleading or deceptive conduct in contravention of s 52.

9 Terry Shepherd of the United Kingdom was the majority shareholder in SMA. Mr Harris understood he was also the major shareholder in SMP and in Sports Mondial America Inc (“SMI”). Mr Harris had worked in various companies for Mr Shepherd in each of which he was involved in the sale of tickets and hospitality for major sporting events. He said that in that time he had never been unable to deliver a ticket. When he sent the email he was confident from his experience that the tickets would be delivered.

10 The contract was signed by Ms Wong and Mr Harris on 11 June 2001. It was for 130 category 1 tickets for $975,000, 50% of which was to be paid within seven days of invoice and the remaining 50% by 30 April 2002. If CSFB cancelled the booking or part of it more than 60 days before the event, CSFB was liable to pay 50% of the total price. If the cancellation was made less than 60 days before the event, CSFB remained liable for the total booking cost.

11 The contract was silent on the time for delivery of the tickets and was silent as to the proximity of the seats the one to the other. CSFB internal documentation contained acknowledgements that it should have sought a specified delivery date in the contract.

12 The first instalment of $487,500 was paid to SMA on 18 June 2001. CSFB pleaded that there were then reasonable grounds for believing that the tickets would not be supplied within a reasonable time and SMA was in breach of the Trade Practices Act 1974 (Cth), s 58. Mr Andrew Bell, who appeared for CSFB, informed me during his address that the s 58 allegation was confined to the second instalment.

13 In October 2001, CSFB reduced its order to 119 tickets. Mr Harris said he could not reduce the cancellation fee because SMA had already bought the tickets.

14 Teresa Bugo replaced Ms Wong at CSFB. On 4 April 2002 she sent an email to Mr Harris seeking “written confirmation on the confirmed number of tickets and when they will be delivered to us”. Mr Harris responded on 10 April 2002 stating: “the tickets for both games you booked should arrive with you 1 week prior to each game.” There was a booking for another game with which I am not concerned.

15 On 18 April 2002, SMA was paid the balance of $446,250 for the 119 tickets. Since CSFB had cancelled 11 tickets more than 60 days before the event, it was liable for 50% of their cost. That amount had been paid in the first instalment.

16 The Trade Practices Act 1974 (Cth), s 58(b) provided that a corporation should not in trade or commerce accept payment for goods where at the time of acceptance there were reasonable grounds, of which the corporation was aware or ought reasonably to have been aware, for believing that the corporation would not be able to supply the goods within a reasonable time.

17 Mr Harris said that he continued to believe that the tickets would be available for the same reasons he had when he sent the email of 8 June 2001.

18 On 22 May 2002, Ms Bugo sent an email to Mr Harris specifying a delivery date: “Before June 7, 2002 (Kevin, please advise if this is possible as our Tokyo office would need some time to delivery (sic) them to our clients directly).” This was the first mention of a need on CSFB’s part for pre-delivery of the tickets to its clients. Mr Harris responded by telephone that the tickets would not be available then but were expected about one week before the event. On the same day Matthew O’Sullivan of SMA wrote to Ms Bugo saying that from past experience with World Cups, SMA expected the tickets to be available five to seven days prior to the game.

19 In an internal email of 6 June 2002, Ms Bugo attributed a statement to Mr Harris that the tickets were to be delivered to the Tokyo office by the next week, that is the week commencing Monday 10 June 2002. This timing is out of step with the constant theme of one week or five to seven days and I reject any inference that Mr Harris made such a statement.

20 Jeremy Purchase was the general manager of SMI. For 20 years he had been involved in the purchase and re-sale of tickets to major sporting events. He had obtained tickets from participating sporting bodies and sponsors of events as well as other sources. He said he had filled every order he received and was not aware of any order that had not been filled. In cross-examination he was shown documents indicating that an order placed on the internet on 2 June 2002 for four tickets to games on 8 and 12 June 2002 had led to a refund. Hand written notes on the documents indicated that the purchaser could not attend one of the games. I place little weight on this event.

21 Mr Purchase was in Japan from May to the end of June 2002 handling tickets for the World Cup. He obtained more than 10,000 tickets for the World Cup including more than 1,000 tickets for the final. He said that SMP entered into an agreement for the supply of tickets to fill the CSFB order approximately six months before the final. Such contracts were rarely in writing and in this case the contract was verbal and with an individual. Mr Harris was informed by Mr Shepherd that the contract was entered into in October 2001.

22 Mr Purchase said it was a term of the contract that the tickets for CSFB would be delivered on Friday 28 June 2002. The following exchange took place in cross-examination:

‘Q: Were you aware of any terms of that agreement which
you have been referring to?


A: Only that we would have been receiving tickets on
Friday afternoon for the final and from whom.

Q: This is correct, is it, Mr Purchase, you were aware
of a contract which you think was entered into about six
months prior to the game which provided for the supply
of tickets on Friday 28 June which tickets would include
those allocated for CSFB, correct?

A: Correct.”

23 Later in his cross-examination, the following exchange occurred:

‘Q: I am referring to another contract. The contract
for the delivery of these tickets from the source you
identified in writing?
A: Prior to the contract between ourselves and the
source that we identified in writing, the nature of this
business is at certain times he is being told one thing,
such as we should have the delivery of the tickets by
Wednesday. Sometimes in this business it just doesn't
happen. The final deadline that we received from him,

which was in fact after the 26th, on or around about the
27th, was 6.30 latest Friday evening in Tokyo.

Q: That was the delivery time in the contract which had
been entered into by Sports Mondial PLC about six months
before, wasn't it? That was your evidence before the
break?
A: No. The evidence I entered into before the break
was to the best of my knowledge that the contract was
entered into six months before with this gentleman. At
no time - excuse me, please don't interrupt me. At no
time did I say to you that when the contract was
executed to the best of my knowledge the delivery time
was 6.30. That came after the fact.’

24 It was submitted on behalf of SMA that Mr Purchase misunderstood the earlier question and the burden of his evidence should be taken as identifying the making of a supply contract for the tickets which ultimately led to delivery at 6.30 pm on Friday 28 June 2002. I reject that submission. Mr Purchase was precise in the answers he gave during his cross-examination and, in particular, in the above passages. Delivery was to be on Friday 28 June 2002. What he objected to in the later passage was the suggestion that the contractual term defined the time on Friday 28 June 2002 as 6.30 pm.

25 As Mr Jackman SC, who with Mr Goodman appeared for SMA, submitted, by Thursday 20 June 2002, a crisis had developed within CSFB. Kaoru Matsuda sent an email to Ms Bugo saying it was too risky to wait until the middle of the next week. She said that the official supplier could sell over 100 tickets with hospitality, US$3,800 for a silver package and US$4,800 for a gold package. Ms Matsuda said:

“if the sports company cannot deliver them all at once by 25th June (five days prior to the match), we will cancel them all without cancellation fee because they said, “will deliver the tickets 5-7 days before the match” then will buy 117 silver package…”

Ms Bugo responded:

“As discussed this afternoon, the latest delivery date will be next Tuesday (June 25) and he will touch base with his counterpart tonight to see when the exact delivery date is.”

Mr Harris said that it was quite likely that he did say words to that effect to Ms Bugo.

26 Michael Terence Molloy was a vice president in the internal client services group of CSFB. He became directly involved on Friday 21 June 2002. Ryu Matsuda informed him that the custom in Japan when an executive invited a client as a guest to a function was for the executive physically to attend the office of the guest prior to the event and deliver the guest’s ticket. Mr Matsuda said CSFB’s reputation would be severely damaged if tickets could not be delivered in accordance with this protocol. Also on that day, Ms Matsuda said she had contacted the vendor again and asked them to hold 117 tickets over the weekend awaiting confirmation. Mr Matsuda was given authority that day to obtain the tickets through whatever means were necessary.

27 At 7.37 pm that night, Mr Matsuda set out a time line to satisfy the Japanese protocol. It suggested that time had already run out. It allocated half a day to seating allocation and over a week to satisfy the Japanese protocol. At 9.23 pm Mr Molloy reported to Michelle Lee, his superior. There followed a flurry of activity within CSFB that continued until 1.17 am on Saturday morning discussing the dilemma of the possibility of two sets of tickets and how to mitigate the problem.

28 On Saturday 22 June 2002, FIFA offered to supply 110 silver hospitality package tickets for US$418,000. The invoice contained an option exercisable by Monday 24 June 2002. The option period was extended to Tuesday 25 June 2002 on Sunday evening, 23 June 2002.

29 On Saturday morning, 22 June 2002, Mr Harris told Mr Molloy by telephone that SMA was awaiting tickets from its supplier and should start taking delivery of tickets for the final early the next week.

30 By Monday morning, 24 June 2002, CSFB was ready to pay for the alternative tickets so soon as Mr Molloy gave the instruction following his scheduled meeting that morning with Mr Harris. Mr Harris said that the following conversation took place:

Molloy said: “We ordered these tickets a long time ago and we need them now. Will you guarantee me tickets on Wednesday?”
I said: “I don’t have them yet. The second semi-final will be on Wednesday night so I should have the tickets soon after that game has been decided. I expect the printing will be done in London on Wednesday night and couriered to our suppliers on Thursday. I should have them on Thursday night.”
Molloy said: ”Will you guarantee me tickets on Thursday?”
I said: “No”.
Molloy said: ”Will you guarantee me tickets on Friday?”
I said: “No”.
Molloy said: ”Will you guarantee me tickets on Saturday?”
I said: “No. No, Michael, look. I am not going to put any guarantees in place with you. I cannot give you a guarantee that you will receive the tickets on any particular day as I do not have that kind of guarantee from my supplier. I’m not going to give you a guarantee of Thursday and then we don’t receive them and you complain that the guarantee was broken. I would rather be honest with you and when I have the tickets or more information about their delivery I will call you.”

31 It was during this conversation that SMA was first made aware of the Japanese protocol. Mr Harris offered Category 2 tickets with a reduction in price. This offer was rejected.

32 Mr Molloy’s version of the conversation was not much different. His recollection was that he said: “Can you at least guarantee delivery prior to 12 noon on Friday?” and when he received a negative answer he said: ”By 12 noon on Saturday?” to which the answer was “No”. He thought he asked the same question about the day of the match and received another negative answer. In cross-examination, Mr Molloy agreed that Mr Harris had not said that CSFB would not get its tickets at all.

33 Following the meeting, Mr Molloy authorised the purchase of the alternative tickets from FIFA and discussed the matter with Sarah Pearson, CSFB’s managing director, regional general counsel. She sent an email and a facsimile to Mr Harris on Monday afternoon, 24 June 2002. In part they stated that the tickets should be delivered no later than five days before the final:

“Without prejudice to our rights, we are prepared to allow you until 8.30 pm (Tokyo time) on 25th June 2002 in order to deliver to Mr Molloy in person a block of 130 category 1 seats for this Sunday’s World Cup Final. Failure to deliver the appropriate tickets to Mr Molloy by that time will cause us to consider you to be in breach of the contract – and we shall take action accordingly. In any event we shall seek to obtain tickets from an alternative source and we shall not be prepared to wait any longer for you to obtain these tickets.”

34 The letter said that Ms Pearson understood that Mr Harris could not guarantee delivery of the tickets. Mr Harris’s reaction was immediate and indignant. He told Mr Molloy that SMA guaranteed delivery of the tickets but not necessarily when. Mr Molloy accepted that this was Mr Harris’s position. Mr Harris repeated it in a letter on that Monday 24 June 2002 pointing out that the contract did not stipulate any time for delivery.

35 Ms Pearson responded on Tuesday 25 June 2002. The letter included the following:

“As for the delivery time, we rely upon (a) an implied term of any contract as to reasonableness (b) your letter to Phoebe Wong of our office dated 22nd May indicating expected delivery time and (c) the indication you gave Messrs Molloy and Thompson yesterday as to the impossibility of you being able to deliver the tickets at all.

In the interests of both parties we therefore feel constrained to seek an alternative source for the tickets and therefore the deadline for you to perform on the contract between us stands. You have until 8.30 p.m. this evening (Tokyo time) to deliver the tickets, whereupon (should you fail to deliver 119 category 1 tickets in a block) we shall seek an alternative source and look to you to make us good.”

36 The letter is curious in its repetition of the assertion of a lack of any guarantee of delivery of the tickets and in its suggestion that alternative tickets might be purchased after 8.30 pm when they had already been purchased.

37 Robert Dobson was the other shareholder and the managing director of SMA. He wrote to Ms Pearson on Tuesday 25 June 2002 asserting that there had been no breach of contract. He suggested that if CSFB did not wish to take delivery of the ordered tickets it notify SMA so that it could sell them on CSFB’s behalf. Mr Dobson repeated this suggestion on Wednesday 26 June 2002 after the deadline had passed, saying the tickets would be available in due course. Mr Purchase informed Ms Pearson that the tickets would be delivered on Friday 28 June 2002 or on Saturday 29 June 2002.

38 At 6.09 pm on Wednesday 26 June 2002, Ms Pearson terminated the contract. The email contained the following:

“ … I confirm that CSFB is no longer prepared to accept delivery from SMA of the 119 category 1 tickets that our contract relates to. This is for a number of reasons but, inter alia, includes your inability – even at this late stage – to confirm exact and timely delivery details. Whilst recent discussions have been extremely helpful I regret that they have occurred so late in this process. Given the number of clients that CSFB has invited we felt compelled to seek an alternative source of tickets to ensure we are able to perform on our invitation and to avoid disappointment…
You have offered to try to sell the 119 tickets “on our behalf”. Whilst I do not accept this offer as a conclusion of the matter in dispute, I believe that it is in the interests of both parties – in an effort to mitigate any potential loss of either party – for SMA to use its best effort to sell the 119 category 1 tickets for the highest possible price…”

39 On Thursday 27 June 2002 Mr Purchase informed Ms Pearson that the delivery time for the tickets was 6.30 pm on Friday 28 June 2002. Mr Purchase received 300 tickets at about that time on Friday 28 June 2002 of which 119 were allocated to CSFB. SMA’s Tokyo office was in the same building as CSFB’s office. The tickets were subsequently sold for $1,050 each.

40 Where no time for completion is specified in a contract, the law implies a term that performance is to be within a reasonable time (Canning v Temby (1905) 3 CLR 419 at 424). Such a term is to be implied in the contract here in question. What is a reasonable time is a question of fact. It depends upon the circumstances and its limit is determined by what is fair to both parties (Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 567-568). What is reasonable is to be determined at the time performance is alleged to be due and is influenced by what occurs as it elapses (Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 at 576).

41 In my view a reasonable time for delivery of the tickets expired at 8.30 pm Tokyo time on Tuesday 25 June 2002, five days before the World Cup final.

42 Mr Harris held the view that one hour before the final was a reasonable time. He said that before this, the tickets were useless because one could not gain entry to the stadium. He did not communicate this view to CSFB. Instead, he gave them to understand that tickets to the final would, in the ordinary course, be delivered one week before the event.

43 Delivery of tickets to CSFB one hour before the event would not constitute performance in a reasonable time, in my view. Both Mr Harris and Mr Purchase were aware that the tickets were to be used by CSFB for client entertainment for the purpose of realising commercial and corporate benefits. Mr Purchase agreed that in order to achieve this purpose, meticulous planning well in advance of the event was necessary.

44 During his meeting with Mr Molloy on Monday 24 June 2002, Mr Harris suggested that the tickets for the final could not be printed until the second semi-final had been played and the identity of both finalists was known. This was not so. Mr Purchase took delivery of 400 to 500 tickets for the final before Friday 28 June 2002. Some were delivered in the week leading up to the final and some, 10 to 14 days before that. CSFB obtained the replacement tickets on Wednesday 24 June 2002. More to the point, however, if from his experience of handling tickets to other major sporting events, Mr Harris was aware of late printing of tickets for finals so that they identified the competing teams, he could not have expected delivery of the tickets a week before the final.

45 The tickets were never to be available for delivery one week or five to seven days before the event. Their supplier was contracted to deliver them on Friday 28 June 2002. Mr Jackman submitted that it was reasonable for Mr Harris to rely upon the expertise of SMP and assume that the tickets would be delivered in due course. But early in the piece when CSFB had plenty of time to make alternative arrangements if dissatisfied with the information that its tickets would not be delivered until Friday 28 June 2002, Mr Harris was asked to confirm in writing when delivery would take place and he vouchsafed the one week and Mr O’Sullivan said five to seven days without checking the accuracy of these statements.

46 It is true that CSFB required a longer period than was normal because of the Japanese protocol and it is true that SMA was not informed of the protocol until the eleventh hour. However, CSFB did not insist on an abnormally long time before the final for completion. It sought five days, the least of the periods SMA volunteered as usual.

47 Mr Purchase was at SMA’s Tokyo office from May 2002. He was aware that the tickets would not be delivered until Friday 28 June 2002. Yet he did not alert CSFB or Mr Harris to this fact. Instead, Mr Harris presented Mr Molloy with the dilemma that the tickets would be delivered but the time of delivery would not be specified. Delivery by Saturday 29 June 2002 and, perhaps, by noon Sunday 30 June 2002 was not guaranteed by Mr Harris.

48 In my view, CSFB was entitled to appoint 8.30 pm on Tuesday 25 June 2002 for completion. In my view, SMA’s failure to deliver the tickets by that time constituted a breach of a condition entitling CSFB to terminate the contract.

49 CSFB pleaded a breach of a second implied term that the tickets would be reasonably fit for the purpose for which they were purchased. It was submitted that there was an anticipatory breach of this term when Mr Harris informed Mr Molloy that the 119 tickets would not be in one block.

50 In view of my finding that SMA was in breach of the implied term that completion would be effected within a reasonable time, it is unnecessary for me to deal with this issue. However, in light of the unchallenged evidence of Mr Harris that in the period between May 2001 and the execution of the contract on 11 June 2001 he informed Ms Wong that the seats would not be in one block, I would not have found that any implied term as to fitness was breached by the prospective delivery of non-blocked seat tickets.

51 CSFB pleaded a breach of a second contract to sell and account for the sale price of the tickets constituted by the correspondence passing between Mr Purchase and Mr Dobson with Ms Pearson on 25 and 26 June 2002. It was submitted that if CSFB was not entitled to terminate the contract, it had been supplanted by a second contract that in place of SMA’s obligation to deliver the tickets, it would sell them and account to CSFB for the proceeds. It was common ground that the tickets had been sold but that SMA had not accounted to CSFB for the proceeds.

52 It is also unnecessary for me to deal with this claim. However, I would not have found that the parties formed a second contract. Ms Pearson’s email of 26 June 2002 did not amount to an acceptance of an offer that CSFB forego the right to delivery of the tickets in consideration for a promise by SMA to sell them and account to CSFB for the proceeds of sale. Ms Pearson agreed to the sale as mitigation of the loss arising from the breach by SMA of the original contract. Her position was that there was but one contract the terms of which SMA had breached. In my view there was neither an acceptance by Ms Pearson of an offer, nor consideration for a second contract, nor an intention on Ms Pearson’s part to create a new legal relationship between the parties.

53 The claim with respect to the Trade Practices Act 1974 (Cth), s 52 was confined to the email from Mr Harris to Ms Wong of 8 June 2001. While the representations were false in their attribution to SMA, as Mr Harris readily conceded, they were accurate so far as Sports Mondial generally was concerned. SMP did receive an allocation of tickets and SMA, which placed orders for tickets through SMP, could thereby obtain tickets to meet its contractual obligations to CSFB. The complaint of CSFB was not as to an inability on the part of SMA to obtain tickets but rather its inability to obtain them in a timely fashion.

54 Furthermore, in order to succeed under this head of claim, CSFB must prove that its loss was occasioned “by” conduct in breach of the statute. That connotes the notion of causation (Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525). There was no evidence of any relevant reliance by CSFB on the representation to its detriment. As I have said, the loss sustained by CSFB flowed from the untimely delivery of tickets by SMA rather than from any misstatement that it was able to acquire tickets. Were it necessary for me to do so, I would have dismissed CSFB’s claim that the Trade Practices Act 1974 (Cth), s 52 was infringed.

55 The final instalment under the contract was paid to SMA on 18 April 2002. That was shortly after Ms Bugo had sought and received in writing from SMA the statements that the tickets should be available to CSFB one week or five to seven days prior to the final. I have found that the tickets were to be supplied to SMA on Friday 28 June 2002, two days before the match. That was a matter of which Mr Harris ought reasonably to have been aware on 18 April 2002 by proper inquiry of SMP. Had he been aware of this fact, there were reasonable grounds for believing that SMA would not be able to supply the tickets within a reasonable time. SMA having nominated a week or five to seven days to Ms Bugo, two days did not, in my view, constitute a reasonable time for performance for the purposes of of the Trade Practices Act 1974 (Cth), s 58.

56 Even if I had accepted that the burden of the evidence of Mr Purchase did not ascribe a delivery term in the supply contract to SMP, Mr Purchase’s description of the nature of the business conducted by SMP involving suppliers saying one thing about delivery times but sometimes not performing to those times, was reasonably open to discovery by Mr Harris. If Mr Harris had been aware of this feature, it was not open to him to inform Ms Bugo of a delivery date one week before the final and he ought reasonably to have been aware on 18 April 2002 that there were reasonable grounds that SMA would not be able to supply the tickets within a reasonable time. If it were necessary for me to decide the issue, I would have found that CSFB had established a breach by SMA of the Trade Practices Act 1974 (Cth), s 58.

57 It was not contended that if CSFB was entitled to terminate the contract, it was not entitled to restitution. In my view, CSFB is entitled to recover the two instalments paid by it to SMA of $487,500 and $446,250 less $41,250, the cancellation fee for the 11 tickets, a total of $892,500. CSFB also claimed recovery of the travelling expenses of Mr Molloy and Ms Bugo which it is accepted totalled $13,400. Mr Jackman submitted that Mr Molloy made the decision for he and Ms Bugo to travel well before any breach of contract and no award of travelling expenses should be made. I accept that submission.

58 In light of my findings, it is unnecessary and undesirable for me to consider Mr Bell’s submission that damages under the Trade Practices Act 1974 (Cth), s 82 for breach of s 58 with respect to the receipt of the second instalment might also include the amount of the first instalment.

59 There will be judgment for CSFB for $892,500 together with interest. I will hear the parties on costs. The parties are to bring in short minutes of orders to reflect these reasons.

Last Modified: 02/11/2003