Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351

Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351

The terms of the court undertaking were ambiguous, with alternative constructional choices reasonably open about whether use of the hashtag #bathurstrealestate breached the undertaking and whether the undertaking applied to agents or their corporate entity. The ambiguity precluded any finding of contempt. Additionally, even if a breach was made out on a strict construction, the evidence raised a reasonable doubt that the conduct was wilful rather than accidental or unintentional.

Parties
Plaintiff: Bathurst Real Estate Pty Ltd; First Defendant: Sandy Michael Fairbrother; Second Defendant: Jay Patrick Cleary; Third Defendant: Smile Real Estate Pty Limited
Jurisdiction
Australia
Judgment Date
29 March 2022
Procedural Posture
Civil Contempt / Final Judgment
Outcome
Proceedings dismissed
Legal Topics
Civil Contempt, Breach of Court Undertaking, Ambiguity in Legal Undertakings, Social Media Evidence
Equity Civil Contempt Breach of Court Undertaking Ambiguity in Legal Undertakings Social Media Evidence

Case Brief

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Parties

Bathurst Real Estate Pty Ltd

Plaintiff

Sandy Michael Fairbrother

First Defendant

Jay Patrick Cleary

Second Defendant

Smile Real Estate Pty Limited

Third Defendant

Procedural Posture

Civil Contempt / Final Judgment

Legal Issues

  1. 1 Whether publication of #bathurstrealestate hashtag breached the court undertaking by defendants
  2. 2 Whether the undertaking was ambiguous and thus unenforceable for contempt
  3. 3 Whether use of the hashtag constituted use 'in marketing and promotional materials'

Ratio Decidendi

The terms of the court undertaking were ambiguous, with alternative constructional choices reasonably open about whether use of the hashtag #bathurstrealestate breached the undertaking and whether the undertaking applied to agents or their corporate entity. The ambiguity precluded any finding of contempt. Additionally, even if a breach was made out on a strict construction, the evidence raised a reasonable doubt that the conduct was wilful rather than accidental or unintentional.

Court Disposition

Proceedings dismissed

Orders

  • Proceedings dismissed with costs to follow the event