Park v Brothers - [2003] NSWSC 865

CITATION: Park v Brothers [2003] NSWSC 865

HEARING DATE(S): 11/8/03 - 14/8/03

JUDGMENT DATE:
7 October 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Damages awarded for two precontractual misrepresentations, and for breach of contract. Interest on amount of damages for precontractual misrepresentations allowed at 8.5% per annum. Interest on damages for loss of profits caused by breach of contract allowed by reference to when income would have been received.

CATCHWORDS: TRADE PRACTICES AND RELATED MATTERS - consumer protection - misleading and deceptive conduct by statements in advertising - relevance of target audience of advertising to whether statement is misleading and deceptive - factual decisions about whether representation relied on - factual decisions about whether representation continued to have causal effect - CONTRACTS - factual decision about consequences of breach of contract - INTEREST - rate of interest - interest under section 94 Supreme Court Act 1970 - on damages for misrepresentation inducing entry of contract for sale of land, where much of purchase price is secured by mortgage back - interest rates under Schedule J Supreme Court Act not appropriate - INTEREST - recoverability of interest - section 94 Supreme Court Act 1970 - from what date interest runs in action for loss of profits arising from breach of contract

LEGISLATION CITED: Fair Trading Act 1987
Supreme Court Act 1970
Native Vegetation Conservation Act 1997

CASES CITED: Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
Park v Brothers [2001] NSWSC 88; (2001) 10 BPR 18,649

PARTIES :
Lindsay Gordon Park - First Plaintiff
Jill Park - Second Plaintiff
Clive Roy Brothers - Defendant

FILE NUMBER(S): SC 1224/01

COUNSEL: D Murr SC; J Trebeck - Plaintiffs
D Cantwell, solicitor - Defendant

SOLICITORS: Holman Webb - Plaintiffs
Don Cantwell - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

7 OCTOBER 2003

1224/01 LINDSAY GORDON PARK & ANOR v CLIVE ROY BROTHERS

JUDGMENT

HIS HONOUR:

Nature of the Case

1 The Plaintiffs entered a contract to purchase from the Defendant a rural property. A term of the contract entitled the Plaintiffs to possession of the property pending completion. They entered possession and commenced farming activities there, but the Defendant purported to rescind the contract, and excluded them from the property for several months. The Court held that the purported rescission was wrongful. After the Court gave that decision, the contract was completed. The Plaintiffs claim damages for breach of contract arising from their wrongful exclusion from the property.

2 In addition, the Plaintiffs say that there were various pre-contractual misrepresentations, upon which they relied. They seek damages for breach of sections 42 and 45 of the Fair Trading Act 1987.

Precontractual Representations

3 “Jellalabad” is a rural property of a little less than 25,000 acres, located about 40 kms west of Hay. It has recently been re-named “Newmarket”.

4 The first Plaintiff, Mr Park, has been a farmer for more than 40 years, since he was…

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.

Continue reading Park v Brothers

Details

AGLC: Park v Brothers [2003] NSWSC 865
Case: [2003] NSWSC 865
Decision Date: 7 October 2003

CaseChat Overview and Summary

The case of Park v Brothers was heard in the Supreme Court of Queensland. The plaintiffs, Park, alleged that the defendants, Brothers, had engaged in misleading and deceptive conduct through statements in their advertising. They also claimed that the defendants breached a contract for the sale of land and sought damages for the loss of profits. The central issues in this case were whether the advertising was misleading or deceptive, whether there was a breach of contract, and the appropriate rate of interest on the damages claimed.

The court had to determine whether the advertising statements were misleading and deceptive, considering the target audience and whether the representations were relied upon and continued to have a causal effect. Regarding the contract, the court assessed the consequences of the alleged breach. In terms of interest, the court examined whether the statutory rates under the Supreme Court Act were appropriate for the damages claimed and from what date interest should run on the loss of profits.

The court concluded that the advertising statements were misleading and deceptive, particularly in relation to the target audience. It found that the defendants breached the contract for the sale of land. As for the interest on damages, the court held that the statutory rates were not appropriate given the nature of the damages claimed. Instead, it applied the general rate of interest under section 94 of the Supreme Court Act 1970. The court also determined that interest on the loss of profits should run from the date of the breach.

The final orders of the court included a declaration that the defendants' advertising was misleading and deceptive, an order for specific performance of the contract for the sale of land, and an award of damages for the loss of profits with interest at the rate prescribed by section 94 of the Supreme Court Act 1970 from the date of the breach.

Orders