Elias Bastas v John Edward Hodes (No 2) [2009] NSWSC 1092

Elias Bastas v John Edward Hodes (No 2) [2009] NSWSC 1092

Even assuming the implied terms alleged by the plaintiffs, breach of contract was not made out because GPL enjoyed the goodwill of Hodes & Co from 11 December 2000 to 25 January 2007 while the business was conducted on GPL's behalf by the defendant, and the evidence did not establish any failure to transfer goodwill or lack of good faith. The Fair Trading Act claim also failed because the alleged failure to transfer goodwill was not proved and the Court preferred the defendant's evidence that no sufficiently precise representations as to retirement were made.

Jurisdiction
Australia
Judgment Date
26 October 2009
Procedural Posture
Proceedings for Damages for Breach of Contract and Relief Under the Fair Trading Act 1987 / Principal Judgment After Hearing
Outcome
Further amended statement of claim dismissed with costs.
Legal Topics
['implied Terms' 'good Faith' 'goodwill in Sale of Business' 'misleading or Deceptive Conduct' 'fair Trading Act 1987 S 42']
['contract Law' 'australian Consumer and Fair Trading Law'] ['implied Terms' 'good Faith' 'goodwill in Sale of Business' 'misleading or Deceptive Conduct' 'fair Trading Act 1987 S 42']

Case Brief

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Procedural Posture

Proceedings for Damages for Breach of Contract and Relief Under the Fair Trading Act 1987 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether implied terms in the heads of agreement required the defendant to do all things necessary to vest or transfer goodwill and to act in good faith.' 'Whether the defendant breached the heads of agreement by failing to transfer the goodwill of JE Hodes & Co to GPL.' 'Whether the defendant made misleading or deceptive representations under Fair Trading Act 1987, s 42 that he would retire or transfer goodwill.' 'Whether any proven representations induced entry into the heads of agreement and entitled the plaintiffs to relief.']

Ratio Decidendi

Even assuming the implied terms alleged by the plaintiffs, breach of contract was not made out because GPL enjoyed the goodwill of Hodes & Co from 11 December 2000 to 25 January 2007 while the business was conducted on GPL's behalf by the defendant, and the evidence did not establish any failure to transfer goodwill or lack of good faith. The Fair Trading Act claim also failed because the alleged failure to transfer goodwill was not proved and the Court preferred the defendant's evidence that no sufficiently precise representations as to retirement were made.

Court Disposition

Further amended statement of claim dismissed with costs.

Orders

  • ['The amended statement of claim is dismissed with costs.']