Milicevic & Anor v Ferrari East Pty Ltd & Ors (No 3) [2023] NSWSC 1116

Milicevic & Anor v Ferrari East Pty Ltd & Ors (No 3) [2023] NSWSC 1116

Neither plaintiffs nor defendants established the essential term they contended for regarding the nature of the 1 October 2013 agreement, which was found not to include either a valid transfer of shares/units or unencumbered assets. Both contractual claims for breach failed as the key contractual terms were not ascertained. However, the defendants (Ferrari East and Gerard Ferrari) engaged in misleading or deceptive conduct by making financial representations without reasonable grounds, which induced the plaintiffs into the agreement. Plaintiffs were entitled to statutory relief and damages under the Australian Consumer Law. Cross-claim by Ferrari East was dismissed.

Jurisdiction
Australia
Judgment Date
14 September 2023
Procedural Posture
Principal Judgment / First Instance Decision
Outcome
Parties’ contractual claims dismissed; plaintiffs granted relief for misleading or deceptive conduct under the Australian Consumer Law; Ferrari East’s cross-claim dismissed; quantum of damages subject to further calculation.
Legal Topics
['partly Oral and Partly Written Contract' 'misleading or Deceptive Conduct' 'australian Consumer Law' 'damages Assessment' 'contractual Terms Ascertainment']
['equity' 'contract Law' 'consumer Law'] ['partly Oral and Partly Written Contract' 'misleading or Deceptive Conduct' 'australian Consumer Law' 'damages Assessment' 'contractual Terms Ascertainment']

Case Brief

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Procedural Posture

Principal Judgment / First Instance Decision

Legal Issues

  1. 1 ['Whether a partly oral and partly written agreement provided for a transfer of shares and units in a joint venture vehicle or a transfer of unencumbered legal title to 60% of assets or some other term; Whether parties engaged in misleading or deceptive conduct under the Australian Consumer Law; How damages should be calculated for misleading conduct; Whether implied terms and warranties arose from the contract; Whether the agreement was frustrated, unenforceable, or voidable']

Ratio Decidendi

Neither plaintiffs nor defendants established the essential term they contended for regarding the nature of the 1 October 2013 agreement, which was found not to include either a valid transfer of shares/units or unencumbered assets. Both contractual claims for breach failed as the key contractual terms were not ascertained. However, the defendants (Ferrari East and Gerard Ferrari) engaged in misleading or deceptive conduct by making financial representations without reasonable grounds, which induced the plaintiffs into the agreement. Plaintiffs were entitled to statutory relief and damages under the Australian Consumer Law. Cross-claim by Ferrari East was dismissed.

Court Disposition

Parties’ contractual claims dismissed; plaintiffs granted relief for misleading or deceptive conduct under the Australian Consumer Law; Ferrari East’s cross-claim dismissed; quantum of damages subject to further calculation.

Orders

  • ['Claims for contractual relief (by both sides) dismissed.' 'Plaintiffs entitled to relief under the Australian Consumer Law for misleading or deceptive conduct by Ferrari East and Gerard Ferrari; quantum of damages to be finalised.' 'Ferrari East’s cross-claim dismissed.' 'Usual order as to costs (costs follow the...