Brimaud, Kenneth Maurice v Boston Securities Entertainment Investments Pty Ltd & Ors [1998] FCA 1392

Brimaud, Kenneth Maurice v Boston Securities Entertainment Investments Pty Ltd & Ors [1998] FCA 1392

The 8 May Agreement required delivery of 1 per cent of the final fully capitalised issued capital before any public offer, and the shares Mr Brimaud would have received on performance would have been part of the initial capital and subject to the escrow restriction. Accordingly damages should be calculated by reference to the value of 440,000 Cinema Plus shares at the date after the escrow period expired, not by reference to an earlier market purchase measure. Because Mr Brimaud would also have received the dividend on those shares, the dividend of $11,440 plus interest from 1 January 1998 should be included. The respondents did not establish that Mr Brimaud acted unreasonably by failing...

Jurisdiction
Australia
Judgment Date
09 October 1998
Procedural Posture
Claim for Damages Arising From Repudiation of the 8 May Agreement Concerning Shares in Cinema Plus / Ex Tempore Reasons After Earlier Reasons on Entitlement, Dealing With Assessment of Damages, Mitigation, Costs, and Adjournment Before Entry of Judgment
Outcome
Matter adjourned to 16 October 1998 for the market price of Cinema Plus shares after expiry of the escrow period to be known; the Court adhered to assessment of damages by reference to the post-escrow value of 440,000 shares, included the dividend with interest, rejected the mitigation reduction, and determined that...
Legal Topics
['repudiation of Contract' 'assessment of Damages for Shares' 'escrow Period and Restricted Shares' 'mitigation of Loss' 'dividend Component of Damages' 'costs Discretion' 'estoppel' 'misleading or Deceptive Conduct']
['contract Law' 'damages' 'civil Procedure' 'costs' 'equity' 'misleading or Deceptive Conduct'] ['repudiation of Contract' 'assessment of Damages for Shares' 'escrow Period and Restricted Shares' 'mitigation of Loss' 'dividend Component of Damages' 'costs Discretion' 'estoppel' 'misleading or Deceptive Conduct']

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Procedural Posture

Claim for Damages Arising From Repudiation of the 8 May Agreement Concerning Shares in Cinema Plus / Ex Tempore Reasons After Earlier Reasons on Entitlement, Dealing With Assessment of Damages, Mitigation, Costs, and Adjournment Before Entry of Judgment

Legal Issues

  1. 1 ['Whether damages should be assessed by reference to the market value of Cinema Plus shares at the date of judgment or an earlier date in November or December 1996.' 'Whether the shares to be delivered under the 8 May Agreement would have been subject to the escrow period restriction.' 'Whether the damages should include a dividend that Mr Brimaud would have received had the shares been delivered.' 'Whether Mr Brimaud failed to mitigate his loss by not using the balance of the price to purchase Cinema Plus shares on the market.' "How costs should be allocated given Mr Brimaud's success on the first tranche claim and failure on other claims, including claims against Mr Blom."]

Ratio Decidendi

The 8 May Agreement required delivery of 1 per cent of the final fully capitalised issued capital before any public offer, and the shares Mr Brimaud would have received on performance would have been part of the initial capital and subject to the escrow restriction. Accordingly damages should be calculated by reference to the value of 440,000 Cinema Plus shares at the date after the escrow period expired, not by reference to an earlier market purchase measure. Because Mr Brimaud would also have received the dividend on those shares, the dividend of $11,440 plus interest from 1 January 1998 should be included. The respondents did not establish that Mr Brimaud acted unreasonably by failing...

Court Disposition

Matter adjourned to 16 October 1998 for the market price of Cinema Plus shares after expiry of the escrow period to be known; the Court adhered to assessment of damages by reference to the post-escrow value of 440,000 shares, included the dividend with interest, rejected the mitigation reduction, and determined that...

Orders

  • ['Matter adjourned to 16 October 1998.' 'Damages to be assessed by calculating the value of 440,000 Cinema Plus shares as at the date of judgment, with the contemplated calculation date being the first business day after expiry of the escrow period unless further submissions or evidence show that is inappropriate.'...