Brimaud, Kenneth Maurice v Boston Securities Entertainment Investments Pty Ltd & Ors [1998] FCA 1104

FEDERAL COURT OF AUSTRALIA

CONTRACT – application for damages for breach of contract – language of agreement unclear – whether contract both written and oral – whether contract orally varied – whether estoppel arises as to time for exercise of option – whether misleading or deceptive conduct in relation to exercise of option – repudiation of contract – whether damages precluded because applicant not ready, willing and able to perform contract. DAMAGES – measure of damages for breach by seller of fungible property – difference between contract price and market price – time at which market price should be determined where assessment of damages depends on future events.

Secured Income Real Estate (Australia) Pty Ltd v St Martins Investment Pty Ltd (1979) 144 CLR 596, referred Bahr v Nicolay (No. 2) (1988) 164 CLR 604, referred Willis v The Commonwealth (1946) 73 CLR 105, followed Johnson v Perez (1988) 166 CLR 351, referred Foran v Wight (1989) 168 CLR 385, referred KENNETH MAURICE BRIMAUD v BOSTON SECURITIES ENTERTAINMENT INVESTMENTS PTY LIMITED & ORS NG 996 of 1996 EMMETT J SYDNEY

9 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 996 of 1998

BETWEEN: KENNETH MAURICE BRIMAUD

Applicant

AND: BOSTON SECURITIES ENTERTAINMENT INVESTMENTS PTY LIMITED

First Respondent

CINEMA PLUS LIMITED

Second Respondent

GARY BLOM

Third Respondent

JUDGE: EMMETT J

DATE: 9 september 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: The applicant, Kenneth Maurice Brimaud ("Mr Brimaud") claims damages from Boston Securities Entertainment Investments Pty Limited ("Boston"), Cinema Plus Limited ("Cinema Plus") and Gary Blom ("Mr Blom"). The claim for damages is based upon breaches of contract, contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) and contraventions of the Corporations Law. The primary claims are for alleged breach of contract and the other claims might fairly be characterised as fall back positions so far as Mr Brimaud is concerned.