Duncan & Ors v IBEB Pty Ltd & Anor [2010] NSWDC 275

Duncan & Ors v IBEB Pty Ltd & Anor [2010] NSWDC 275

The first and second defendants, through their agent Mr Singh, made an intentionally false, misleading and deceptive representation that the wages schedule attached to the 17 May 2005 facsimile summarised wages incurred on average over the previous two years for the Macquarie Street newsagency. The plaintiffs reasonably relied on that representation when purchasing the business; but for the representation they would not have purchased it. The representation caused them to overpay for goodwill and incur continuing losses. No reduction for proportionate liability was warranted, and damages including pre-judgment interest were assessed at $671,144.13.

Jurisdiction
Australia
Judgment Date
09 December 2010
Procedural Posture
Civil Claim for Damages Arising From Alleged False, Misleading and Deceptive Representations in the Sale of a Newsagency Business / Trial Judgment After Hearing
Outcome
Verdict and judgment for the plaintiffs against the first and second defendants in the sum of $671,144.13, with costs on the ordinary basis unless otherwise ordered.
Legal Topics
['misleading or Deceptive Conduct' 'sale of Business' 'misrepresentation' 'reliance and Causation' 'measure of Damages' 'agency' 'proportionate Liability' 'pre Judgment Interest']
['contract' 'tort' 'trade Practices' 'fair Trading' 'damages' 'civil Liability'] ['misleading or Deceptive Conduct' 'sale of Business' 'misrepresentation' 'reliance and Causation' 'measure of Damages' 'agency' 'proportionate Liability' 'pre Judgment Interest']

Case Brief

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Procedural Posture

Civil Claim for Damages Arising From Alleged False, Misleading and Deceptive Representations in the Sale of a Newsagency Business / Trial Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first and second defendants owed the plaintiffs a relevant duty of care concerning information provided during negotiations for the sale of the newsagency business.' 'Whether the 17 May 2005 facsimile and attached trading figures and wages schedule amounted to representations, and what representations were made.' 'Whether the representations were false, misleading or deceptive within the meaning of s 52 of the Trade Practices Act 1974 (Cwth) or s 42 of the Fair Trading Act 1987.' 'Whether the plaintiffs relied on the representations.' "Whether the representations caused the plaintiffs' claimed losses." 'What measure of damages should be applied, including capital loss, continuing losses and interest.' 'Whether Mr Singh acted as agent of the first and second defendants in conveying the representations.' 'Whether any apportionable claim or proportionate liability arose under the Civil Liability Act 2002.']

Ratio Decidendi

The first and second defendants, through their agent Mr Singh, made an intentionally false, misleading and deceptive representation that the wages schedule attached to the 17 May 2005 facsimile summarised wages incurred on average over the previous two years for the Macquarie Street newsagency. The plaintiffs reasonably relied on that representation when purchasing the business; but for the representation they would not have purchased it. The representation caused them to overpay for goodwill and incur continuing losses. No reduction for proportionate liability was warranted, and damages including pre-judgment interest were assessed at $671,144.13.

Court Disposition

Verdict and judgment for the plaintiffs against the first and second defendants in the sum of $671,144.13, with costs on the ordinary basis unless otherwise ordered.

Orders

  • ['Verdict and judgment for the plaintiffs against the first and second defendants in the sum of $671,144.13.' 'The first and second defendants are to pay the costs of the plaintiffs on the ordinary basis unless otherwise ordered.' 'The exhibits may be returned.' 'Liberty to apply on 7 days notice if further orders...