Fabcot Pty Ltd -v- Port Macquarie-Hastings Council [2010] NSWSC 726

Fabcot Pty Ltd -v- Port Macquarie-Hastings Council [2010] NSWSC 726

The Council's deliberate silence as to the fact that its negotiations with Woolworths were not, or had ceased to be, exclusive was misleading or deceptive or likely to mislead or deceive in contravention of s 42(1) of the Fair Trading Act 1987 (NSW), because the EOI process and the parties' dealings gave Woolworths a reasonable expectation that it would be told if its negotiating position was no longer exclusive. However, Woolworths failed to prove on the balance of probabilities that it would have shifted position and accepted the Council's terms if disclosure had been made, and therefore failed to prove loss caused by the contravention. Woolworths also failed to establish that Coles had...

Jurisdiction
Australia
Judgment Date
02 July 2010
Procedural Posture
Commercial List Proceedings Alleging Misleading or Deceptive Conduct Under the Fair Trading Act 1987 (nsw), With Cross Claim / Principal Judgment After Hearing
Outcome
Summons dismissed. Cross-claim dismissed.
Legal Topics
['fair Trading Act 1987 (nsw) Ss 42(1), 61, 68(1)' 'non Disclosure During Negotiations' 'accessorial Liability' 'causation and Loss' 'commercial Opportunity Damages' 'legal Professional Privilege Waiver']
['trade and Commerce' 'misleading or Deceptive Conduct' 'equity' 'loss and Damages'] ['fair Trading Act 1987 (nsw) Ss 42(1), 61, 68(1)' 'non Disclosure During Negotiations' 'accessorial Liability' 'causation and Loss' 'commercial Opportunity Damages' 'legal Professional Privilege Waiver']

Case Brief

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Procedural Posture

Commercial List Proceedings Alleging Misleading or Deceptive Conduct Under the Fair Trading Act 1987 (nsw), With Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Council's deliberate failure to tell Woolworths that it was negotiating with Coles or a third party was misleading or deceptive or likely to mislead or deceive in contravention of s 42(1) of the Fair Trading Act 1987 (NSW)." "Alternatively, whether the Council's failure to tell Woolworths that it was not, or was no longer, negotiating exclusively with Woolworths was misleading or deceptive or likely to mislead or deceive." 'Whether Coles was knowingly involved in any contravention by the Council.' 'Whether Woolworths suffered loss by the conduct, including whether it would have shifted position and whether the Council would have sold to Woolworths.' "Whether the Council's cross-claim against Woolworths was established." 'Whether Woolworths waived legal professional privilege in advice obtained after the Council sold the Land to Coles.']

Ratio Decidendi

The Council's deliberate silence as to the fact that its negotiations with Woolworths were not, or had ceased to be, exclusive was misleading or deceptive or likely to mislead or deceive in contravention of s 42(1) of the Fair Trading Act 1987 (NSW), because the EOI process and the parties' dealings gave Woolworths a reasonable expectation that it would be told if its negotiating position was no longer exclusive. However, Woolworths failed to prove on the balance of probabilities that it would have shifted position and accepted the Council's terms if disclosure had been made, and therefore failed to prove loss caused by the contravention. Woolworths also failed to establish that Coles had...

Court Disposition

Summons dismissed. Cross-claim dismissed.

Orders

  • ["Woolworths' Summons is dismissed." "The Council's cross-claim against Woolworths is dismissed." "Provisionally, Woolworths is to pay the Council's costs and Coles' costs of the claim." "Provisionally, the Council is to pay Woolworths' costs of the cross-claim." 'Any party wishing to be heard on costs is within...