Fabcot Pty Ltd v Port Macquarie-Hastings Council

In *Fabcot Pty Ltd v Port Macquarie-Hastings Council*, the New South Wales Court of Appeal considered an appeal from a decision of the primary judge concerning allegations of misleading or deceptive conduct. The appellant, Fabcot Pty Ltd, had submitted a successful expression of interest (EOI) to acquire land owned by the respondent, Port Macquarie-Hastings Council. Following negotiations with Fabcot, the Council commenced negotiations with another party, Party B, without informing Fabcot. The Council subsequently sold the land to Party B, leading Fabcot to claim it suffered loss and damage due to the Council's misleading or deceptive conduct.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that Fabcot would not have agreed to the Council's terms even if it had been aware of the Council's dealings with Party B, and whether the Council had engaged in misleading or deceptive conduct. Specifically, the Court examined whether the Council had represented that it would negotiate exclusively with Fabcot unless it notified Fabcot that exclusivity had ended, and whether Fabcot held a reasonable expectation of such prolonged exclusivity.

The Court of Appeal upheld the primary judge's findings. It reasoned that while the Council's conduct in negotiating with Party B without informing Fabcot might have been open to criticism, the crucial element of causation was not established. The primary judge's finding that Fabcot would not have accepted the Council's terms, even with full knowledge of the Council's actions, was not demonstrably erroneous. This finding meant that Fabcot had failed to prove that the Council's conduct had caused its loss. The Court applied principles of causation under the *Trade Practices Act 1974* (Cth), focusing on whether the alleged misleading conduct was a necessary condition for Fabcot's loss.

The appeal was dismissed, and Fabcot Pty Ltd was ordered to pay the Council's costs of the appeal.