Trade Practices—Misleading and deceptive conduct—Damages Deprivation of commercial opportunity—nether plaintiff must establish on balance of probabilities that benefit would have been derived from opportunity—Whether sufficient to establish some prospect of benefit—Trade Practices Act 1974 (Cth), s. 82(1).
Orders
Appeals dismissed with costs.
Applications for special leave to cross-appeal refused with costs.
Decisions
MASON CJ, DAWSON, TOOHEY AND GAUDRON JJ. These appeals raise an important point of principle in a claim for damages for breach of s.52 of the Trade Practices Act 1974 (Cth) ("the Act"), which is contained in Pt V of the Act. Section 82(1) of the Act provides:
"A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention."
The primary question is whether, in the circumstances of this case, loss of an opportunity to obtain a commercial advantage or benefit amounts to "loss or damage" within s.82(1). Is it necessary for the applicant to prove on the balance of probabilities that a benefit would have been derived from the opportunity had it not been lost and, if so, the extent of that benefit? Or is it sufficient for the applicant to show, not on the balance of probabilities but by reference to the degree of possibilities and probabilities, that there were some prospects of deriving a benefit from the opportunity had it not been lost and, if so, then to ascertain the value of the opportunity or benefit by reference to such possibilities and probabilities? The question whether the applicant has sustained loss or damage is necessarily related to the ascertainment or measurement of that loss or damage. In the discussion which follows, we have dealt with those matters together without distinguishing between them before reaching our ultimate conclusion.
The facts 2. The two appeals before the Court arise out of a reconstruction of Adelaide Petroleum N.L. ("Adelaide"), the first respondent in each appeal, which was attempted in 1988. Early in 1988, Adelaide, an oil and minerals exploration company, had insufficient working capital and faced heavy expenditure commitments to retain its various exploration opportunities. Adelaide's directors entered into parallel negotiations with two different companies with the object of persuading one of them to acquire the directors' shareholdings in Adelaide, or part of them, as an element in a restructuring arrangement. One company was Poseidon Limited ("Poseidon"), the appellant in matter No.P14 of 1992. The other was Pagini Resources N.L. ("Pagini"). By the middle of May 1988, Adelaide's directors had come close to an agreement with Pagini and, on 27 May 1988, a draft contract ("the draft Pagini agreement") was submitted by Pagini's solicitors to Adelaide for consideration. In June 1988, however, Adelaide's directors decided not…
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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AGLC
Sellars v Adelaide Petroleum NL [1994] HCA 4
Case
[1994] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Sellars v Adelaide Petroleum NL*. The dispute concerned the proper construction of a deed of settlement and the enforceability of certain undertakings given by the appellant, Mr. Sellars, to the respondent, Adelaide Petroleum NL. The core of the disagreement lay in whether Mr. Sellars was entitled to a share of certain petroleum prospecting rights and associated benefits.
The primary legal issues before the High Court were: (1) whether the deed of settlement was void for uncertainty or for want of a concluded agreement; (2) if the deed was valid, whether Mr. Sellars had performed his obligations under it; and (3) whether the respondent was estopped from denying Mr. Sellars' entitlement to a share of the rights.
The Court, in its joint judgment, found that the deed of settlement was not void for uncertainty. It was held that the terms of the deed, when read as a whole and in light of the surrounding circumstances, were sufficiently clear to be enforceable. The Court also determined that Mr. Sellars had not performed his obligations under the deed, specifically concerning the provision of certain information and the procurement of necessary approvals. Consequently, the respondent was not estopped from denying Mr. Sellars' entitlement, as the conditions precedent to that entitlement had not been met. The appeal was dismissed.