Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Miles v Luneburger Franchising Pty Ltd [2021] NSWCA 248 Hearing dates: 17 September 2021 Date of orders: 14 October 2021 Decision date: 14 October 2021 Before: Macfarlan JA at [1]
Gleeson JA at [2]
Simpson AJA at [105]Decision: (1) Direct that the name of the respondent be changed to “Luneburger Franchising Pty Ltd as trustee for Luneburger Franchising Trust”.
(2) Appeal dismissed.
(3) Appellant to pay the respondent’s costs.
Catchwords: CONTRACT — construction — interpretation — debt collection agreement — meaning of ‘collect’ — where agent obtained judgment debt against debtor — where debtor deregistered company — no monies collected from debtor — whether agent entitled to fee — whether agreement authorised agent to pursue other alleged debtors not specified in agreement
CONTRACT — breach — where debt collection agreement prohibited principal taking any steps in relation to specified debt — where principal withdrew instructions of solicitors retained on behalf of principal by agent — whether breach of debt collection agreement
DAMAGES — damages in contract — causation — loss of commercial opportunity — chance of obtaining fee for collecting a debt — where debtor company deregistered and likely insolvent — whether causation established — whether chance of acquiring fee had some value other than negligible or speculative
Legislation Cited: Corporations Act 2001 (Cth), s 601AD(2)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: ACCC v ASIC [2000] NSWSC 316; (2000) 34 ACSR 232
Allied Maples Group Ltd v Simmons & Simmons (a Firm) [1995] 1 WLR 1602
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity General Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jowitt v Callaghan (1938) 38 SR (NSW) 512
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Paterson v Clarke [2002] NSWSC 1206
Perry v Raleys Solicitors [2020] AC 352; [2019] UKSC 5
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11
Turner Manufacturing Co Pty Ltd v Senes [1964] NSWR 692
Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 90 ALJR 392
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- Case
- [2021] NSWCA 248
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were the proper construction of the debt collection agreement, specifically the meaning of "collect" in the context of the agreement and whether the respondent was entitled to a fee when it had obtained a judgment debt against a deregistered company from which no monies were actually collected. Further, the court considered whether the agreement authorised the respondent to pursue alleged debtors not specifically identified in the agreement. The court also had to determine if the respondent had breached the agreement by withdrawing instructions to solicitors previously retained on behalf of the respondent by the appellant, and whether the appellant had suffered actionable loss due to a loss of commercial opportunity, given the debtor company was deregistered and likely insolvent.
The Court of Appeal held that the term "collect" in the agreement did not require the actual receipt of monies by the respondent, but rather the successful completion of the debt recovery process, including obtaining judgment. The court found that the respondent had fulfilled its obligations under the agreement by obtaining judgment against the debtor company, even though no funds were ultimately recovered due to the company's deregistration and insolvency. Regarding the alleged breach, the court found that the respondent's actions did not constitute a breach of the agreement. Furthermore, the court determined that the appellant had not established a causal link between any breach by the respondent and a loss of commercial opportunity, as any chance of acquiring a fee was negligible or speculative.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The court also ordered that the name of the respondent be changed to “Luneburger Franchising Pty Ltd as trustee for Luneburger Franchising Trust”.
Orders
Orders of the court
(1) Direct that the name of the respondent be changed to “Luneburger Franchising Pty Ltd as trustee for Luneburger Franchising Trust”.
(2) Appeal dismissed.
(3) Appellant to pay the respondent’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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