Barcar Pty Limited v Carpatsea Pty Limited [2008] NSWSC 344

Procedural Posture

Civil / Final Judgment

Legal Issues

1. 1 ['Whether the defendants engaged in misleading or deceptive conduct under Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW)' 'Whether the contractual representations and warranties as to employee expenses were false' 'Whether the plaintiff relied on the representations and whether there is a causal link to damage' 'Whether accessorial and primary liability attaches to the individual defendant' 'How damages should be calculated for breach of statutory and contractual obligations']

Ratio Decidendi

The representations and warranties in the provided documents and contracts as to employee expenses were false and misleading or deceptive by omitting key management wages and by excessive deduction for rebates. The plaintiff relied on these representations when entering into the contracts, abandoning due diligence upon receipt of contractual warranties. The false representations induced the plaintiff to pay a higher purchase price. Both the company and its director bear liability under the Trade Practices Act, Fair Trading Act, and in contract. Damages are assessed as the difference between price paid and value at date of acquisition, less appropriate rebates but including management wages.

Court Disposition

Judgment for the plaintiff; damages awarded against both defendants.

Orders

• ['Plaintiff entitled to judgment against both defendants for $688,371 for breach of s 52 Trade Practices Act, s 42 Fair Trading Act, and breach of contract.' 'Parties to bring in agreed Short Minutes of Order as to interest and costs or otherwise argue those issues at further listing.']