Jacfun Pty Limited v Sydney Harbour Foreshore Authority [2012] NSWCA 218

Jacfun Pty Limited v Sydney Harbour Foreshore Authority [2012] NSWCA 218

The Sydney Harbour Foreshore Authority, through statements by its negotiator, engaged in misleading or deceptive conduct by exaggerating the unlikelihood of office development being permitted at the Darling Walk site and presenting this as the foreseeable position of the SHFA board, contrary to SHFA’s own understanding and genuine prospects. This conduct, intended to lower Jacfun’s expectations, was relied on by the Jacfun board as a material influence in their negotiations, resulting in a lost opportunity to negotiate a higher surrender price. The proper measure of loss is the value of that lost commercial opportunity, which is assessed at $1.25m.

Jurisdiction
Australia
Judgment Date
25 July 2012
Procedural Posture
Appeal / Court of Appeal Decision on Appeal From Orders Made by the Supreme Court (equity Division)
Outcome
Appeal allowed.
Legal Topics
['misleading or Deceptive Conduct' 'remedies for Statutory Contraventions' 'valuation of Lost Commercial Opportunity' 'lease Surrender' 'negotiations Affecting Lease Surrender' 'reliance and Causation']
['trade Practices' 'equity'] ['misleading or Deceptive Conduct' 'remedies for Statutory Contraventions' 'valuation of Lost Commercial Opportunity' 'lease Surrender' 'negotiations Affecting Lease Surrender' 'reliance and Causation']

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Procedural Posture

Appeal / Court of Appeal Decision on Appeal From Orders Made by the Supreme Court (equity Division)

Legal Issues

  1. 1 ['Whether Sydney Harbour Foreshore Authority engaged in misleading or deceptive conduct within the meaning of s 42 Fair Trading Act 1987 (NSW) in negotiations regarding the surrender of a lease by Jacfun Pty Limited.' 'Whether Jacfun suffered loss or damage by reason of misleading or deceptive conduct, and how any remedy should be measured.']

Ratio Decidendi

The Sydney Harbour Foreshore Authority, through statements by its negotiator, engaged in misleading or deceptive conduct by exaggerating the unlikelihood of office development being permitted at the Darling Walk site and presenting this as the foreseeable position of the SHFA board, contrary to SHFA’s own understanding and genuine prospects. This conduct, intended to lower Jacfun’s expectations, was relied on by the Jacfun board as a material influence in their negotiations, resulting in a lost opportunity to negotiate a higher surrender price. The proper measure of loss is the value of that lost commercial opportunity, which is assessed at $1.25m.

Court Disposition

Appeal allowed.

Orders

  • ['Set aside the orders of the Supreme Court made 8 March 2011.' 'Judgment for the plaintiff for $1.25m.' 'The defendant (SHFA) to pay the plaintiff’s (Jacfun’s) costs in the proceedings below.' 'The respondent (SHFA) to pay the appellant’s (Jacfun’s) costs of the appeal.']