M & E Brisby Pty Ltd v D Poole Services Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

M & E Brisby Pty Ltd v D Poole Services Pty Ltd & Anor [2025] NSWDC 44

Hearing dates:

12 November 2024 – 15 November 2024, 12 December 2024

Date of orders:

07 March 2025

Decision date:

07 March 2025

Jurisdiction:

Civil

Before:

Weber SC DCJ

Decision:

(1) Judgment and verdict for the Defendants against the Plaintiff.

(2) The Plaintiff pay the Defendants’ costs.

Catchwords:

CONTRACT – Contract for sale of business – Alleged pre-contractual and post-contractual breaches of contract – Where no breaches established on the evidence – Where no warranty given as to business performance or ongoing supply arrangements with a third-party

CONSUMER LAW – Misleading and deceptive conduct claim – Alleged breaches of ACL s 18 – Where ACL (Cth) pleaded against a natural person – Failure to plead ACL (NSW) as an application law – Where representations not misleading or deceptive

Legislation Cited:

Australian Consumer Law (Cth) ss 1, 18

Australian Consumer Law (NSW)

Competition and Consumer Act 2010 (Cth) ss 131, 140

Fair Trading Act 1987 (NSW) ss 28, 32

Cases Cited:

ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640

Campbell v Tran [2024] NSWSC 204

Wormald v Maradaca Pty Ltd [2020] NSWCA 289

Xu v Lindasy Bennelong Developments Pty Ltd [2020] NSWSC 1692

Zervas v Burkitt (No 2) [2019] NSWCA 236

Category:

Principal judgment

Parties:

M & E Brisby Pty Ltd (Plaintiff)
D Poole Services Pty Ltd (First Defendant)
David Poole (Second Defendant)

Representation:

Counsel:
Mr D Eardley (Plaintiff)
Mr S Reuben (Defendants)

Solicitors:
Stacks Law Firm (Plaintiff)
Hunt & Hunt Lawyers (Defendants)

File Number(s):

2023/00168915

Publication restriction:

None

JUDGMENT

Introduction

1. These proceedings concern a contract for sale of a business known as “Sports Online”. The business involved the online retailing of sports memorabilia. The contract was in writing and is dated 6 July 2022 (the “Contract”).

2. The Plaintiff sues both in contract and pursuant to s 18 of the Australian Consumer Law (Cth).

Background

3. In August 2021, the Second Defendant, who controls the First Defendant, caused Sports Online to be advertised for sale on a sale of business website. The directors of the Plaintiff, Mathew and Emma Brisby, expressed some interest in the business and, following this expression, the Second Defendant provided to the Plaintiff a confidential business profile (“CBP”). This document was provided as representing an indication of the basis upon which the First Defendant as vendor was willing to treat for the purpose of a contract of sale of the business. The document contained an asking price for the business of $895,000 plus stock.

The Plaintiff’s Directors’ Business Background

4. At the time when the Brisbys were looking to purchase the First Defendant’s business, they were persons with considerable business experience. They had conducted three Optus retail outlets. These were franchise operations, subject to a license agreement. They understood that there were restrictions contained in their contract with Optus, which required them to buy phones through Optus (T: 25-26.10). They also understood…