Tisdall v Omeros - [2019] QSC 220

SUPREME COURT OF QUEENSLAND

CITATION:

Tisdall v Omeros & Anor [2019] QSC 220

PARTIES:

DAVID CHRISTOPHER TISDALL

(plaintiff)

v
MICHAEL NICTARIOS OMEROS
(first defendant)
BRENT EVANS PADDON

(second defendant)

FILE NO:

BS 2199 of 2018

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 - 16 May 2019

JUDGE:

Bradley J

ORDER:

The plaintiff’s claim is dismissed and judgment is entered for the defendants.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – CONDITIONS AND WARRANTIES – where the plaintiff and the defendants were together directors and shareholders of a company – where the plaintiff sold his shareholding to the defendants by way of a written share sale agreement (“SSA”) – where, after completion of the sale, the defendants caused the shares to be publicly listed – where the plaintiff contends that the defendants withheld from or did not disclose to him that they were contemplating and/or had commenced initial preparation to list the shares in the company on the Australian Stock Exchange (“ASX”) – where the plaintiff contends the defendants breached cl 9(a)(i)(A) of the SSA, by which the defendants warranted that they had not withheld from or failed to disclose to the plaintiff any material information in relation to the shares – whether breach of warranty is established

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the plaintiff contends, in the alternative, that the defendants’ alleged failure to inform the plaintiff that they were contemplating and/or had commenced initial preparation to list the company on the ASX was misleading or deceptive conduct, in contravention of s 18 of the Australian Consumer Law – where the plaintiff contends that he would not have entered into or completed the SSA had the defendants disclosed or not withheld the information, and that as a consequence of the misleading conduct, he suffered loss and damage – whether the defendants’ conduct was misleading or deceptive – whether the plaintiff suffered loss as a consequence of the defendants’ allegedly misleading or deceptive conduct

Competition and Consumer Act 2010 (Cth), sch 2, s 18, s 236

R v Byrnes (1995) 183 CLR 501; [1995] HCA 1, cited
R v Byrnes; R v Hopwood (1996) 20 ACSR 260; cited

COUNSEL:

M D Martin QC, with B Kabel, for the plaintiff

G A Thompson QC SG, with M Trim, for the defendants

SOLICITORS:

Mills Oakley for the plaintiff

McCullough Robertson for the defendants

The plaintiff David Tisdall claims damages from the defendants, Michael Omeros and Brent Paddon, for the alleged breach of a warranty in a written share sale agreement. In the alternative, the plaintiff claims for the recovery of alleged loss or damage pursuant to section 236 of the Australian Consumer Law (ACL).[1] At the trial, the plaintiff valued his damages under either…

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 Tisdall v Omeros

Details

AGLC: Tisdall v Omeros [2019] QSC 220
Case: [2019] QSC 220
Decision Date: 6 September 2019

CaseChat Overview and Summary

In the matter of Tisdall v Omeros, the plaintiff, who was a director and shareholder of a company, sold his shareholding to the defendants, also directors and shareholders of the company, pursuant to a written share sale agreement. Following the sale, the defendants caused the shares to be publicly listed. The plaintiff claimed that the defendants failed to disclose that they were considering or had begun preparations to list the shares on the Australian Stock Exchange, which he contends was a breach of a warranty in the agreement. Alternatively, he argued that this failure constituted misleading or deceptive conduct under the Australian Consumer Law. The defendants denied both claims.

The court needed to determine whether the defendants breached the warranty in the share sale agreement by failing to disclose the contemplation or preparation of listing the shares on the Australian Stock Exchange. Additionally, the court had to decide if the defendants' conduct was misleading or deceptive under the Australian Consumer Law, and whether the plaintiff suffered any loss as a result of such conduct. The court considered the terms of the share sale agreement, the conduct of the defendants, and the potential impact of their actions on the plaintiff.

The court found that the defendants did not breach the warranty in the share sale agreement because the plaintiff had not demonstrated that the information regarding the listing on the Australian Stock Exchange was material. The court also concluded that the defendants' conduct was not misleading or deceptive, as the plaintiff had not shown that he would not have entered into or completed the share sale agreement had he known about the listing. Consequently, the plaintiff's claims were dismissed, and judgment was entered in favour of the defendants.

The court's final order was that the plaintiff's claim was dismissed, and judgment was entered for the defendants. The court did not find any breach of warranty or misleading or deceptive conduct by the defendants, and consequently, the plaintiff was not entitled to any remedy.

Orders

Orders of the court

The plaintiff’s claim is dismissed and judgment is entered for the defendants.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Tisdall v Omeros & Anor [2019] QSC 220
PARTIES:	DAVID CHRISTOPHER TISDALL (plaintiff) v MICHAEL NICTARIOS OMEROS (first defendant) BRENT EVANS PADDON (second defendant)
FILE NO:	BS 2199 of 2018
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 - 16 May 2019
JUDGE:	Bradley J
ORDER:	The plaintiff’s claim is dismissed and judgment is entered for the defendants.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – CONDITIONS AND WARRANTIES – where the plaintiff and the defendants were together directors and shareholders of a company – where the plaintiff sold his shareholding to the defendants by way of a written share sale agreement (“SSA”) – where, after completion of the sale, the defendants caused the shares to be publicly listed – where the plaintiff contends that the defendants withheld from or did not disclose to him that they were contemplating and/or had commenced initial preparation to list the shares in the company on the Australian Stock Exchange (“ASX”) – where the plaintiff contends the defendants breached cl 9(a)(i)(A) of the SSA, by which the defendants warranted that they had not withheld from or failed to disclose to the plaintiff any material information in relation to the shares – whether breach of warranty is established TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the plaintiff contends, in the alternative, that the defendants’ alleged failure to inform the plaintiff that they were contemplating and/or had commenced initial preparation to list the company on the ASX was misleading or deceptive conduct, in contravention of s 18 of the Australian Consumer Law – where the plaintiff contends that he would not have entered into or completed the SSA had the defendants disclosed or not withheld the information, and that as a consequence of the misleading conduct, he suffered loss and damage – whether the defendants’ conduct was misleading or deceptive – whether the plaintiff suffered loss as a consequence of the defendants’ allegedly misleading or deceptive conduct Competition and Consumer Act 2010 (Cth), sch 2, s 18, s 236 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1, cited R v Byrnes; R v Hopwood (1996) 20 ACSR 260; cited
COUNSEL:	M D Martin QC, with B Kabel, for the plaintiff G A Thompson QC SG, with M Trim, for the defendants
SOLICITORS:	Mills Oakley for the plaintiff McCullough Robertson for the defendants