IBEB Pty Ltd v Duncan [2011] NSWCA 368

IBEB Pty Ltd v Duncan [2011] NSWCA 368

The wage schedule in the 17 May 2005 facsimile, read in context, represented that the listed employee hours and wage costs were historical average wage costs incurred by the business apart from proprietor wages. That representation was misleading and deceptive because the wage expenses were materially understated, and Mrs Duncan relied on it on behalf of the purchasers notwithstanding clause 31 of the contract. The primary judge's award for overpayment for goodwill was justified, but the award of $275,000 for continuing losses largely duplicated compensation already provided through the goodwill valuation and was recoverable only for the initial post-settlement trading loss, assessed at...

Jurisdiction
Australia
Judgment Date
28 November 2011
Procedural Posture
Appeal From District Court Judgment Concerning Claims for Misleading and Deceptive Conduct and Negligence Arising From the Sale of a Newsagency Business / Court of Appeal Decision on Appeal
Outcome
Appeal allowed in part.
Legal Topics
['misleading and Deceptive Conduct' 'sale of Business' 'reliance and Causation' 'assessment of Damages for Overpayment for Goodwill' 'continuing Trading Losses' 'proportionate Liability']
['trade and Commerce' 'consumer Protection' 'damages' 'civil Liability'] ['misleading and Deceptive Conduct' 'sale of Business' 'reliance and Causation' 'assessment of Damages for Overpayment for Goodwill' 'continuing Trading Losses' 'proportionate Liability']

Case Brief

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Procedural Posture

Appeal From District Court Judgment Concerning Claims for Misleading and Deceptive Conduct and Negligence Arising From the Sale of a Newsagency Business / Court of Appeal Decision on Appeal

Legal Issues

  1. 1 ['Whether the 17 May 2005 facsimile conveyed a representation about historical wage expenses of the Macquarie Street Newsagency.' 'Whether the representation was misleading and deceptive.' 'Whether the purchasers relied on the representation and whether it caused their loss despite a contractual non-reliance clause.' 'Whether damages for overpayment for goodwill were correctly assessed.' 'Whether the purchasers were entitled to damages for continuing losses in addition to damages for overpayment for goodwill.' "Whether the proportionate liability provisions of the Civil Liability Act 2002 limited the appellants' liability."]

Ratio Decidendi

The wage schedule in the 17 May 2005 facsimile, read in context, represented that the listed employee hours and wage costs were historical average wage costs incurred by the business apart from proprietor wages. That representation was misleading and deceptive because the wage expenses were materially understated, and Mrs Duncan relied on it on behalf of the purchasers notwithstanding clause 31 of the contract. The primary judge's award for overpayment for goodwill was justified, but the award of $275,000 for continuing losses largely duplicated compensation already provided through the goodwill valuation and was recoverable only for the initial post-settlement trading loss, assessed at...

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' 'If the parties are able to agree as to the amount of the judgment, inclusive of interest, that should in accordance with this judgment be entered in lieu of that entered at first instance, the parties should within fourteen days of this judgment, lodge with the Court a form setting out...