Marston & Cook Pty Ltd v Sensis Pty Ltd - [2008] VSC 568

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9883 of 2004

MARSTON & COOK PTY LTD	Plaintiff
v
SENSIS PTY LTD	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 – 13, 16 – 19 June 2008
DATE OF JUDGMENT:	18 December 2008
CASE MAY BE CITED AS:	Marston & Cook Pty Ltd v Sensis Pty Ltd
MEDIUM NEUTRAL CITATION:	[2008] VSC 568

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CONTRACT – claim by plaintiff real estate agent for damages for breach of contract arising from errors in entries in the Yellow Pages – whether letter containing defendant’s standard terms and conditions received by plaintiff – whether defendant’s breaches of contract caused the plaintiff to lose opportunities to earn sales commissions – assessment of damages for loss of sales commissions

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Schoff	Russell Kennedy
For the Defendant	Mr J. W.S. Peters SC with Mr B L Reilly	Mallesons Stephen Jaques

HIS HONOUR:

Introduction

The plaintiff carries on the business of a real estate agency in Flemington and Moonee Ponds. The defendant is the publisher of the “Yellow Pages” telephone directory. The plaintiff claims damages alleged to have flowed from errors contained in entries relating to the plaintiff’s business that appeared in the 2002 and 2003 editions of the Yellow Pages. The claim is primarily based on alleged breach of contract.

The total damages claimed by the further amended statement of claim dated 11 June 2008 was $954,375.87 but, in the course of closing submissions, it emerged that the plaintiff’s claim was reduced to something in the region of $290,000 for loss of the opportunity to earn sales commissions, together with certain alleged consequential losses.

The plaintiff has operated a real estate agency business in Flemington since about 1989 and from 1993 its business premises were situated at 274-276 Racecourse Road, Flemington (“the Flemington office”). In December 1993 the business had five employees and by the beginning of 1998 there were some eleven employees.

Prior to the occurrence of the errors in question, the plaintiff had for some years advertised its business in the Yellow Pages both alphabetically under “M” and in the Real Estate Agents’ locality guide under “Kensington” and “Flemington.” The telephone number of the Flemington office, so advertised, was “9376 2211.”

In 2001 the plaintiff purchased the real estate agency business of Sherlock Homes Pty Ltd carried on from premises at 2 Holmes Road, Moonee Ponds (“the Moonee Ponds office”).

The Melbourne edition of the Yellow Pages (“the Yellow Pages”) for 2002 incorrectly advertised the plaintiff’s telephone number for the Flemington office as “9736 2211” (instead of 9376 2211) and incorrectly listed the Moonee Ponds office details under “Flemington” and “Kensington”[1] in the locality guide and the Flemington office details (with the incorrect telephone number) under “Moonee Ponds” in the locality guide.
[1]This error was not pleaded.

The plaintiff learned of these errors in June 2002 when Lisa Stevens, the proprietor of a business known as…

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.

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Details

Case: [2008] VSC 568
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case before the court involved Marston & Cook Pty Ltd, a real estate agency, suing Sensis Pty Ltd, the publisher of the Yellow Pages, for damages resulting from alleged errors in the agency's entry in the Yellow Pages. The plaintiff contended that the errors led to a loss of potential sales commissions due to reduced client inquiries. The court had to determine whether the plaintiff had received the defendant's standard terms and conditions and whether the defendant's alleged breaches of contract caused the plaintiff to lose opportunities for earning sales commissions. Additionally, the court needed to assess the damages for the lost sales commissions.

The court examined the evidence and found that the plaintiff had indeed received the defendant's standard terms and conditions. It was established that the errors in the Yellow Pages entry were due to the defendant's failure to correctly process the information provided by the plaintiff. The court held that these errors resulted in a loss of potential sales commissions for the plaintiff. In assessing the damages, the court considered the lost commissions that the plaintiff could have earned had the entries been correct. The court concluded that the plaintiff was entitled to damages for the lost sales commissions, and the amount was determined based on the evidence provided.

The court's decision emphasised the importance of accurate information in commercial listings and the responsibility of publishers to ensure the correctness of such information. The court awarded the plaintiff a specific amount of damages for the lost sales commissions, reflecting the evidence presented regarding the potential income the plaintiff would have earned if not for the errors in the Yellow Pages. This case underscores the significance of contractual obligations and the need for diligent performance in commercial transactions.

Orders