Kavanagh v Blissett

[2001] NSWCA 79

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Kavanagh v Blissett [2001]  NSWCA 79

FILE NUMBER(S):
40781/00

HEARING DATE(S):               03/07/01

JUDGMENT DATE: 23/08/2001

PARTIES:
Andrew Bruce Kavanagh & 1 Or
v
Matthew James Blissett & 1 Or

JUDGMENT OF:       Meagher JA Brownie AJA Ipp AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          5695/97

LOWER COURT JUDICIAL OFFICER:     Fisher DCJ

COUNSEL:
A: R Dubler
R: V R Gray

SOLICITORS:
A: Hegarty & Elmgreen
R: Werry & Associates

CATCHWORDS:
Contract - collatoral contract - Trade Practices Act s75B - where Builder in breach of building agreement - whether directors of builder also liable - assessment of damages under Trade Practices Act s82 - appeal dismissed.

LEGISLATION CITED:
Trade Practices Act 1974

DECISION:
Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40781/00

MEAGHER JA
  BROWNIE AJA
  IPP AJA

Thursday, 23 August 2001

ANDREW BRUCE KAVANAGH & 1 OR v MATTHEW JAMES BLISSETT & 1 OR

FACTS
The respondents commenced proceedings in the District Court against Kayuu Pty Limited (“the Builder”), which had performed residential building work for them, claiming damages for breach of contract and misleading and deceptive conduct. The Builder cross-claimed for wrongful repudiation of the contract. The proceedings were referred to a Referee who found that the Builder was seriously in breach of the agreement between the parties and that the appellants, who were shareholders and executive directors of the Builder, were also liable. The Referee’s report was adopted by the trial Judge.

The finding against the appellants formed the subject of this appeal. The issues were whether the appellants were liable along with the Builder on a collateral contract and / or under the Trade Practices Act, s75B. The appellant also submitted that the method by which damages had been assessed, under s82 of the Act, was flawed.

HELD per Meagher JA (Ipp AJA & Brownie AJA agreeing):

1. The appellants associated themselves with false and misleading documents and assurances provided by the Builder to the respondents. The representations applied to the future as well as the present. By virtue of s75B of the Trade Practices Act, the appellants are as liable as the Builder.

Per Ipp AJA & Brownie AJA: There was evidence, on which the trial Judge was entitled to rely, that the representations as to the existing and future matters were false. In any event, the appellants and the Builder bore the onus of proof and they did not discharge that onus.

1. Per Brownie AJA (Ipp AJA agreeing): The appellants are not liable under a collateral contract. Neither appellant said or wrote words on his own personal behalf as distinct from speaking in his capacity as director of the Builder.

Per Meagher JA (dissenting): Granted the findings that the intention of the representors was to induce the respondent to enter the agreement with the Builder and that the contents of the documents did in fact induce the respondents so to act, a collateral warranty is made…