Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Semantic Software Asia Pacific Ltd v Ebbsfleet Pty Ltd [2018] NSWCA 12 Hearing dates: 14 and 15 September 2017 Decision date: 14 February 2018 Before: Macfarlan JA at [1];
White JA at [77];
Sackville AJA at [144]Decision: (1) Appeal allowed in part.
(2) Set aside the following judgments and order entered or made at first instance:
(i) The respondents’ judgment against Semantic on the respondents’ contract claim.
(ii) The respondents’ judgments against Semantic and Mr Bradley on the respondents’ misleading and deceptive conduct claims.
(iii) The order that Semantic pay the respondents’ costs of the proceedings at first instance.
(3) Appeal otherwise dismissed.
(4) Order the respondents to pay Semantic’s costs of the proceedings at first instance and on appeal.
(5) Direct that the respondents receive a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.
(6) Order Mr Bradley to pay the respondents’ costs of his appeal.Catchwords: CONTRACTS – breach of contract – consequences of breach – right to damages – whether remedy identified in contract was the exclusive remedy for breach
CONTRACTS – construction and interpretation – whether contractual guarantee was given by first appellant only
CONTRACTS – breach of contract – whether breach established – whether shares in the second appellant company had tripled in value within two years of their issue – whether trial judge erred in relying on certain expert evidence regarding value of the shares
CONSUMER LAW – misleading or deceptive conduct under statute – parties accepted that representation that shares would triple in value was misleading and deceptive – whether reliance on particular representation was established by respondents
CIVIL PROCEDURE – procedural fairness – self represented defendants – defendants indicated that they would be unable to pay for US resident to give expert evidence – failure to make expert available for cross-examination led to rejection of his report – defendants gave no indication that situation would change – whether procedural unfairness because trial judge failed to advise defendants to seek adjournment to further attempt to make expert availableLegislation Cited: Australian Consumer Law, s 236(1)
Australian Securities and Investments Commission Act 2001 (Cth), s 12DA
Corporations Act 2001 (Cth), ss 247E, 1041H, 1325
Uniform Civil Procedure Rules 2005 (NSW), r 51.53Cases Cited: Aaron’s Reefs Ltd v Twiss [1896] AC 273
ABN Amro Bank NV & Others v Bathurst Regional Council & Ors (2014) 224 FCR 1; [2014] FCAFC 65
Bank of New South Wales v Permanent Trustee Co of New South Wales Ltd (1943) 68 CLR 1; [1943] HCA 27
Boyd v Thorn [2017] NSWCA 210
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64
Downer EDI Ltd v Gillies (2012) 92 ACSR 373; [2012] NSWCA 333
Ebbsfleet Pty Ltd as trustee for Ebbsfleet Superannuation Fund v Semantic Software Asia Pacific Ltd (No 3) [2017]…
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- Case
- [2018] NSWCA 12
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that a contractual guarantee was given by the first appellant only, whether the respondents had established a breach of contract, and whether the trial judge had erred in relying on certain expert evidence concerning the value of the shares. Additionally, the court considered whether the respondents had established reliance on a particular representation, and whether the trial judge’s handling of expert evidence, particularly the unavailability of a US-based expert for cross-examination due to cost, amounted to a denial of procedural fairness to the self-represented defendants.
The Court of Appeal allowed the appeal in part. It found that the trial judge had erred in several respects, including in relation to the contractual guarantee and the findings of misleading and deceptive conduct. The court also determined that the trial judge’s rejection of the expert report, while understandable given the circumstances, did not constitute a denial of procedural fairness, as the defendants had not indicated any intention to seek an adjournment to facilitate the expert’s attendance. Consequently, the court set aside the judgments entered at first instance concerning the contract claim against Semantic Software Asia Pacific Ltd and the misleading and deceptive conduct claims against Semantic Software Asia Pacific Ltd and Mr Bradley. The court also varied the costs orders.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Set aside the following judgments and order entered or made at first instance:
(i) The respondents’ judgment against Semantic on the respondents’ contract claim.
(ii) The respondents’ judgments against Semantic and Mr Bradley on the respondents’ misleading and deceptive conduct claims.
(iii) The order that Semantic pay the respondents’ costs of the proceedings at first instance.
(3) Appeal otherwise dismissed.
(4) Order the respondents to pay Semantic’s costs of the proceedings at first instance and on appeal.
(5) Direct that the respondents receive a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.
(6) Order Mr Bradley to pay the respondents’ costs of his appeal.
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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