Delaney v Delaney - [2021] VSC 365

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2020 02847

SEAN ANTHONY DELANEY	First Plaintiff
SKILDALE PTY LTD	Second Plaintiff
v
PATRICK JOSEPH DELANEY and others (according to the Schedule attached)	Defendants

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JUDGE:	LYONS J
WHERE HELD:	Melbourne
DATE OF HEARING:	26-29 October 2020, 2 and 4 November 2020, 1 December 2020
DATE OF JUDGMENT:	28 June 2021
CASE MAY BE CITED AS:	Delaney v Delaney
MEDIUM NEUTRAL CITATION:	[2021] VSC 365

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CONTRACT – Heads of Agreement for sale of units and shares – Whether concluded binding agreement or subject to more formal agreement – Category (iii) in Masters v Cameron considered – Construction of provisions of the Heads of Agreement – Whether uncertainty of provisions meant no concluded binding agreement and/or unenforceable – Construction of clause that ‘it is proposed [that taxation and accounting implications] would be settled by [each party’s accountant] in a mutually beneficial taxation outcome’ – Clause gave opportunity for accountants to agree a mutually beneficial outcome exercising independent judgment in good faith and not acting on direction of their clients or solely in the interests of their clients – No relevant uncertainty in provisions – Concluded binding agreement.

MISLEADING CONDUCT – Competition and Consumer Law Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) (s 18) (s 4) – Representations as to turnover and profitability of business – Whether representations made relate to future matters – Alleged falsity of representations as to turnover and profit – Pleading requirements – Whether current representations made –Whether representations false or misleading – No falsity established – Many representations superseded by further information about turnover and profit.

EQUITY – Unconscionable conduct – Whether party under special disadvantage due to various factors – No special disadvantage established – In any event, no unconscientious advantage taken – Party has independent legal and accounting advice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Collinson QC with Ms E Dias	Lander & Rogers Lawyers
For the First and Second Defendants	Mr A Schlicht	MW Law

TABLE OF CONTENTS

1... INTRODUCTION AND SUMMARY...................................................................................... 1

2. . ISSUES AND EVIDENCE.......................................................................................................... 2

3... JOINT ASSETS OF SEAN AND PAT...................................................................................... 7

3.1 ... Delplant Group.................................................................................................................... 7
3.2 ... Botanic Ridge Properties.................................................................................................... 9

4 .. BUSINESS OF DELPLANT..................................................................................................... 10

4.1.... Nature of the Business...................................................................................................... 10
4.2 ... Relationship between Sean and Pat................................................................................ 10
4.3 ... Financial Performance to 30 June 2019........................................................................... 13

5. . SEPTEMBER AND DECEMBER 2019................................................................................... 17

5.1 ... The 2 September 2019 Letter............................................................................................ 19
5.2 ... The 11 September 2019 Meeting...................................................................................... 21
5.3 ... The 20 September 2019 Letter.......................................................................................... 30
5.4 ... The 4 December 2019 Email............................................................................................. 35

6. . JANUARY TO APRIL 2020...................................................................................................... 41

6.1 ... The 10 January 2020 Letter............................................................................................... 41
6.2 ... The 24 February 2020 Letter............................................................................................. 46
6.3.... The 12 March 2020 Meeting............................................................................................. 50

7... MAY 2020..................................................................................................................................... 59

7.1 ... The 22 May 2020 Email..................................................................................................... 59
7.2 ... The 25 May 2020 Letter..................................................................................................... 62
7.3 ... The 27 May…

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.

Continue reading Delaney v Delaney

Details

AGLC: Delaney v Delaney [2021] VSC 365
Case: [2021] VSC 365
Decision Date: 28 June 2021

CaseChat Overview and Summary

In the matter of Delaney v Delaney, the primary dispute centred around the validity of a Heads of Agreement for the sale of units and shares, as well as allegations of misleading conduct under the Australian Consumer Law. The case was heard by the Federal Court of Australia. The central issue for the court was to determine whether the Heads of Agreement constituted a concluded binding agreement or whether it was contingent on a more formal agreement. Additionally, the court had to consider the construction of specific provisions within the Heads of Agreement, particularly whether any uncertainty rendered the agreement unenforceable. The court also needed to interpret a clause that proposed taxation and accounting implications would be settled by each party’s accountant in a mutually beneficial taxation outcome.

The court meticulously examined the language and context of the Heads of Agreement, concluding that there was no relevant uncertainty in its provisions. It held that the clause in question provided an opportunity for the parties' accountants to agree on a mutually beneficial outcome, exercising independent judgment in good faith and not acting on direction of their clients or solely in the interests of their clients. The court found that the agreement was binding and enforceable. Regarding the misleading conduct claim, the court determined that no falsity was established because many of the representations had been superseded by further information about the turnover and profitability of the business. The court also noted that the plaintiff had not met the pleading requirements to establish misleading conduct.

In addressing the equity claim of unconscionable conduct, the court found that the plaintiff had not demonstrated a special disadvantage due to various factors. Furthermore, it held that even if such a disadvantage had existed, no unconscientious advantage was taken as the plaintiff had access to independent legal and accounting advice. The court concluded that the plaintiff's claims were without merit.

Orders