Business & Professional Leasing Pty Ltd v Dannawi; BPL (NSW) Pty Ltd v Blue Robe Petroleum Pty Ltd; BPL (NSW) Pty Ltd v Macarounas [2008] NSWSC 902

Business & Professional Leasing Pty Ltd v Dannawi; BPL (NSW) Pty Ltd v Blue Robe Petroleum Pty Ltd; BPL (NSW) Pty Ltd v Macarounas [2008] NSWSC 902

The plaintiff financier is entitled to succeed against all defendants because the signed lease agreements are valid and enforceable. However, for defendants Blue Robe Petroleum Pty Ltd and Macarounas (but not Dannawi), the plaintiff was a 'linked credit provider' within the meaning of s 73 of the Trade Practices Act 1974 (Cth) regarding supplies from a corporate supplier acting through an arrangement. Misrepresentations by the supplier entitled these defendants to set off their full loss (the leased sum owed to plaintiff) against the plaintiff's claim, resulting in a zero net verdict against them. The defence of agency, merchantable quality, and rescission failed; penalty interest rates...

Parties
Plaintiff/first Cross Defendant: Business & Professional Leasing Pty Ltd (now BPL (NSW) Pty Ltd); Defendant/cross Claimant: Samir Dannawi; Defendant/cross Claimant: Blue Robe Petroleum Pty Ltd; Defendant/cross Claimant: Michael Stephen Macarounas t/as Mr Macs Food Store; Second Cross Defendant: Brett Hilder (aka George Terence Hilder); Third Cross Defendant: Maxine Tareha; Third Cross Defendant: Milan Mrkodic; Third Cross Defendant: Yvette Baron; Fourth Cross Defendant: The Original Mama's Pizza & Ribs Pty Ltd; Fourth Cross Defendant: The Original Mama's Pizza & Ribbs Pty Ltd; Fifth Cross Defendant: Michael Stupar; Sixth Cross Defendant: Business Acceptance Corporation Pty Ltd
Jurisdiction
Australia
Judgment Date
05 September 2008
Procedural Posture
Civil/equity Contract/misrepresentation / Judgment After Trial With Cross Claims
Outcome
Plaintiff financier entitled to verdict against all three defendants; Blue Robe Petroleum Pty Ltd and Macarounas succeed on cross-claim to set off their liability for the same amount, resulting in zero net payable; Plaintiff entitled to verdict for amount due against Dannawi.
Legal Topics
Misrepresentation, Linked Credit Provider Liability, Merchantable Quality, Statutory Interpretation, Rescission, Damages, Cross Claims, Penalties and Interest, Agency, Consumer Definition
Contract Law Trade Practices Consumer Law Misrepresentation Linked Credit Provider Liability Merchantable Quality Statutory Interpretation Rescission +5 more

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Parties

Business & Professional Leasing Pty Ltd (now BPL (NSW) Pty Ltd)

Plaintiff/first Cross Defendant

Samir Dannawi

Defendant/cross Claimant

Blue Robe Petroleum Pty Ltd

Defendant/cross Claimant

Michael Stephen Macarounas t/as Mr Macs Food Store

Defendant/cross Claimant

Brett Hilder (aka George Terence Hilder)

Second Cross Defendant

Maxine Tareha

Third Cross Defendant

Milan Mrkodic

Third Cross Defendant

Yvette Baron

Third Cross Defendant

The Original Mama's Pizza & Ribs Pty Ltd

Fourth Cross Defendant

The Original Mama's Pizza & Ribbs Pty Ltd

Fourth Cross Defendant

Michael Stupar

Fifth Cross Defendant

Business Acceptance Corporation Pty Ltd

Sixth Cross Defendant

Procedural Posture

Civil/equity Contract/misrepresentation / Judgment After Trial With Cross Claims

Legal Issues

  1. 1 Whether the plaintiff is liable for alleged misrepresentations by the supplier's agents under contract or statute; whether the agreements can be rescinded due to misrepresentation or breaches of implied conditions; whether the plaintiff is a 'linked credit provider' under s 73 of the Trade Practices Act 1974 (Cth); calculation and entitlement to damages; whether the claim includes unenforceable penalties; measure of interest; failure to mitigate loss

Ratio Decidendi

The plaintiff financier is entitled to succeed against all defendants because the signed lease agreements are valid and enforceable. However, for defendants Blue Robe Petroleum Pty Ltd and Macarounas (but not Dannawi), the plaintiff was a 'linked credit provider' within the meaning of s 73 of the Trade Practices Act 1974 (Cth) regarding supplies from a corporate supplier acting through an arrangement. Misrepresentations by the supplier entitled these defendants to set off their full loss (the leased sum owed to plaintiff) against the plaintiff's claim, resulting in a zero net verdict against them. The defence of agency, merchantable quality, and rescission failed; penalty interest rates...

Court Disposition

Plaintiff financier entitled to verdict against all three defendants; Blue Robe Petroleum Pty Ltd and Macarounas succeed on cross-claim to set off their liability for the same amount, resulting in zero net payable; Plaintiff entitled to verdict for amount due against Dannawi.

Orders

  • Plaintiff entitled to judgment against Samir Dannawi for the amount due on the date of contract termination plus interest at 10% from that date to judgment.
  • Verdict for Blue Robe Petroleum Pty Ltd and Macarounas on their cross-claims, with set off of liability in full against the plaintiff's claim resulting in nothing owed.