Riesen v SST Consulting Services Pty Ltd

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CITATION: RIESEN & ANOR v SST CONSULTING SERVICES PTY LTD [2002] NSWCA 163
FILE NUMBER(S): CA 40806/01
HEARING DATE(S): 12 April 2002
JUDGMENT DATE:
12 April 2002

PARTIES :
STEVEN CHARLES RIESEN & ANOR v SST CONSULTING SERVICES PTY LTD
JUDGMENT OF: Mason P at 1; Meagher JA at 27; Davies AJA at 28
LOWER COURT JURISDICTION : Supreme Court - Common Law Division
LOWER COURT
FILE NUMBER(S) : 		SC 10938/01
LOWER COURT
JUDICIAL OFFICER :		 Sully J
COUNSEL: Appellants: R I M Lilly
Respondent: D H Murr SC/ J C Thompson
SOLICITORS: Appellants: Deacons
Respondent: Mansfield Switzer
DECISION: See par 26




                          CA 40806/01

                          MASON P
                          MEAGHER JA
                          DAVIES AJA

                          Friday 12 April 2002

Steven Charles RIESEN & ANOR v SST CONSULTING SERVICES PTY LTD

JUDGMENT

1 MASON P: In my view this application raises issues suitable for the grant of leave subject to the filing of a notice of appeal.

2 The respondent (hereafter the plaintiff) sued the appellants (hereafter the defendants) in the Common Law Division by statement of liquidated claim. The claim relates to moneys lent by the plaintiff to AFS Freight Management (USA) Inc (AFS), a corporation incorporated in California of which the defendants were the directors. As pleaded, the plaintiff’s claim is based upon a written guarantee whereby the defendants jointly and severally guaranteed the repayment of the loan with interest. The particulars refer to a letter dated 10 September 1999 from Mansfield Switzer to AFS and a deed of guarantee dated 23 December 1999 between the plaintiff as lender and the defendants as guarantors. The sum sued for is $797,263 plus interest at twenty per cent per annum from 19 March 2001.

3 On 29 June 2001 the defendants filed an amended defence which relevantly pleaded:

          5. At all times material to this action:
              5.1 The lender in the loan agreement who was undisclosed but is now asserted to be the plaintiff was a trading corporation within the meaning of the Trade Practices Act 1974 (“the TPA”).
          5.2 The lending of money pursuant to the loan agreement was a service within the meaning of that term in the TPA.
          5.3 The requirements pleaded in subparagraphs 4.4 and 4.5 were requirements whereby AFSL and AFSUS was required to acquire services (within the meaning of TPA) from those persons or corporations who provided those services at the Port Botany/MPG and Pitkin facilities in Sydney, Melbourne and Brisbane.
          5.4 AFSUS and AFSL were related body corporates within the meaning of that term in the TPA.
          6. In the premises, the loan agreement was:
          6.1 An agreement to effect the illegal purpose of exclusive dealing as defined in s47(6) of the TPA (“third line forcing”) proscribed by s47(1) of the TPA.
          6.2 Void and unenforceable.
          7. If, which is denied, the first and second defendants entered into any guarantee in favour of the plaintiff:
          7.1 Such guarantee was provided as required by the terms of the loan agreement pleaded in subparagraph 4.3.
          7.2…
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Details
Case
[2002] NSWCA 163
Decision Date

CaseChat Overview and Summary

The proceeding concerned an appeal from a decision of the Supreme Court of New South Wales. The appellant, Riesen, sought to recover damages for alleged breaches of contract and misleading and deceptive conduct against the respondent, SST Consulting Services Pty Ltd. The dispute arose from a consultancy agreement entered into between the parties.

The primary legal issues before the Court of Appeal were whether the respondent had breached the consultancy agreement and whether its conduct constituted misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Specifically, the court had to determine if the respondent had failed to provide services with due care and skill as required by the contract and if representations made by the respondent regarding its services were misleading.

The Court of Appeal considered the terms of the consultancy agreement and the evidence presented regarding the services provided by the respondent. The court analysed the nature of the alleged breaches and the alleged misleading conduct in light of the relevant contractual provisions and statutory prohibitions. The court's reasoning focused on the interpretation of the contract and the objective assessment of the respondent's conduct against the standard of care and skill expected of a consultant and the prohibition against misleading or deceptive conduct.

The Court of Appeal dismissed the appeal, finding that the appellant had failed to establish the alleged breaches of contract or misleading and deceptive conduct. Consequently, the orders of the Supreme Court were affirmed.

Orders

Orders of the court

See par 26

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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