Premier Protection Agency (Aust) Pty Ltd v Australian Securities Investments Commission [2022] NSWSC 374

Premier Protection Agency (Aust) Pty Ltd v Australian Securities Investments Commission [2022] NSWSC 374

The Court accepted ASIC's evidence of the 24 November 2016 conference call. The alleged black mark threat was not made, and the statement about possible pursuit of additional replacement costs if ASIC terminated for default was a legitimate statement of possible contractual consequences, not an illegitimate threat. New Premier and Mr Martorano were not under a special disadvantage and ASIC did not misuse its stronger commercial position. The termination agreement was supported by mutual releases and was binding, so New Premier's claim failed. On the cross-claim, New Premier's tender conduct was misleading or deceptive because it promoted continuity with Old Premier and relied on Old...

Jurisdiction
Australia
Judgment Date
01 April 2022
Procedural Posture
Equity Proceedings Concerning Contract Termination, Economic Duress, Unconscionable Conduct, and Misleading or Deceptive Conduct Cross Claim / Principal Judgment After Hearing
Outcome
The plaintiff's claim is dismissed. ASIC's cross-claim for misleading and deceptive conduct is made out, with liberty to provide short minutes for any declaration sought. The plaintiff is ordered to pay the defendant's costs, with liberty to apply for 14 days should either party seek a special costs order.
Legal Topics
['economic Duress' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'termination of Contracts' 'security Vetting Services Contracts' 'reliance' 'rescission']
['contract Law' 'consumer Law' 'equity'] ['economic Duress' 'unconscionable Conduct' 'misleading or Deceptive Conduct' 'termination of Contracts' 'security Vetting Services Contracts' 'reliance' 'rescission']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Contract Termination, Economic Duress, Unconscionable Conduct, and Misleading or Deceptive Conduct Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether ASIC officers threatened New Premier that, if it did not agree to terminate the contracts, ASIC would pursue replacement security provider costs or put a black mark on New Premier's business preventing future Commonwealth contracts." "Whether ASIC's conduct in the 24 November 2016 conference call was unconscionable or amounted to economic duress." 'Whether the termination agreement was binding and whether ASIC wrongfully terminated or repudiated the contracts.' "Whether New Premier engaged in misleading or deceptive conduct in tender processes by relying on Old Premier's history while failing to disclose Old Premier's liquidation and substantial ATO liabilities." "Whether ASIC relied on New Premier's misleading or deceptive conduct and whether relief should be granted on the cross-claim."]

Ratio Decidendi

The Court accepted ASIC's evidence of the 24 November 2016 conference call. The alleged black mark threat was not made, and the statement about possible pursuit of additional replacement costs if ASIC terminated for default was a legitimate statement of possible contractual consequences, not an illegitimate threat. New Premier and Mr Martorano were not under a special disadvantage and ASIC did not misuse its stronger commercial position. The termination agreement was supported by mutual releases and was binding, so New Premier's claim failed. On the cross-claim, New Premier's tender conduct was misleading or deceptive because it promoted continuity with Old Premier and relied on Old...

Court Disposition

The plaintiff's claim is dismissed. ASIC's cross-claim for misleading and deceptive conduct is made out, with liberty to provide short minutes for any declaration sought. The plaintiff is ordered to pay the defendant's costs, with liberty to apply for 14 days should either party seek a special costs order.

Orders

  • ["The plaintiff's claim is dismissed." 'The cross claimant has liberty for 14 days to provide short minutes of order providing for any declaration that it seeks to have made on the cross-claim.' "The Plaintiff is ordered to pay the defendant's costs of the proceedings." 'Grant liberty to apply for 14 days should...