Fabcot Pty Ltd v Port Macquarie-Hastings Council

The case of Fabcot Pty Ltd v Port Macquarie-Hastings Council concerned an allegation of misleading and deceptive conduct under the Fair Trading Act 1987 (NSW). The plaintiff, Fabcot Pty Ltd trading as Woolworths, claimed that the Port Macquarie-Hastings Council (the Council) misled it by failing to disclose that it was negotiating with another party, Coles, while the Council was also negotiating with Woolworths for the purchase and development of a supermarket site. Woolworths sought damages and an injunction against the Council and Coles, arguing that the Council's conduct was misleading and deceptive, and that Coles was an accessory to this conduct.

The court was tasked with determining whether the Council's conduct amounted to misleading or deceptive behaviour. The central legal issues involved whether the Council's failure to inform Woolworths about the ongoing negotiations with Coles constituted misleading or deceptive conduct, and if Coles was complicit in any contravention of the Act. Additionally, the court had to assess whether Woolworths had suffered any loss as a result of the Council's actions.

In its judgment, the court held that the Council's conduct was misleading or deceptive. It reasoned that the Council's failure to disclose the negotiations with Coles created a false impression that Woolworths was the sole party in negotiations, which could potentially mislead Woolworths into believing there was an exclusive arrangement. However, the court found that Woolworths had not demonstrated that it suffered any loss due to the Council's conduct. The court determined that on the balance of probabilities, Woolworths would not have shifted its position had it known about the negotiations with Coles, and it was not established that the Council would have sold to Woolworths if it had not engaged in the misleading conduct. Additionally, the court found that it was not proven that Coles knowingly participated in any contravention of the Act.

The court's final orders were that the claims against the Council and Coles were dismissed, and the plaintiff was to pay the costs of the proceeding.