Osric Investments Pty Limited v Woburn Downs Pastoral Pty Ltd [2001] FCA 1402

FEDERAL COURT OF AUSTRALIA

Osric Investments Pty Limited v Woburn Downs Pastoral Pty Ltd [2001] FCA 1402 CONTRACTS - whether or not contracts lapsed - contracts not executed until after date specified in contract - whether money paid on contract deductible under s51(1) Income Tax Assessment Act 1936 (Cth)-for an expense to be "incurred" and therefore deductible under s51(1) it must presently exist and not be contingent - Federal Commissioner of Taxation v Flood (1953) 88 CLR 492; Ogilvy and Mather Pty Ltd v Federal Commissioner of Taxation (1990) 90 ATC 4,836 - as contracts not executed until August, expense was not sufficiently certain in previous financial year to be an expense "incurred" - therefore not deductible - contracts lapsed. CONTRACTS - contracts not void despite named lessor being different from that named in two related contracts as disconformity can be remedied by normal principles of contractual interpretation - Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303; Fitzgerald v Masters (1956) 95 CLR 420. CONTRACTS - breach - journal entries not sufficient to give effect to obligation to pay in cash amount owed under the agreement - Manzi v Smith (1975) 132 CLR 671 - applicant entitled to cancel contracts for fundamental breach - right to cancel not lost until facts of the breach became fully known to the applicant - Greig & Davis, The Law of Contract, 1987 at 1257 - 1258 CORPORATIONS - ss 1064(1), 1065(1), 1073(2) Corporations Law - whether or not applicant had a "prescribed interest" under s1073(2)- "prescribed interest" defined in s9 as "participation interest" - entry into each suite of contracts constituted a "common enterprise" such as to be a "participation interest" - Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR - whether applicant provided the required "notice" to void the contract under s1073(2) - to constitute "notice" it must be sufficient from its terms to bring to other party's attention that contract being voided under s1073(2) - applicant did not provided required "notice". DAMAGES - warranty collateral to contract - no liability in contract on collateral warranty when exactly same subject matter of collateral warranty is the subject matter of a promise in the contract - De Lassalle v Guildford [1901] 2 KB 215 - statement outside written agreement reflected exactly in the agreement can only be a separate source of liability if it can be a basis for relief not obtainable in reliance on the agreement - measure of damages for breach of warranty is to place party in position it would have been in had warranties been true - Gould v Vaggelas (1985) 157 CLR 215 - not same as restitutionary damages - no quantification of damages attempted by applicant - court not in position to attempt such quantification. DAMAGES -ss 82 and 87 Trade Practices Act 1974 (Cth) - proper measure of damages is difference between amount paid by applicant under the contract and any benefits received, including tax benefits - whether or not applicant entitled to indemnity for possible imposition of CGT or GST - no established general rule that award of damages attracts CGT or GST - Namol v Baulderstone - accordingly no indemnity given. TRADE PRACTICES - Trade Practices Act 1974 (Cth) - s52 - misleading and deceptive conduct - sixth and seventh respondents liable for representations they made to applicant, as agents for first to third respondents, because they did more than merely pass on information - they did not establish express or implied disclaimer - Yorke v Lucas (1984) 158 CLR 661. Trade Practices Act 1974 (Cth), ss 52 and 87 Income Tax Assessment Act 1936 (Cth) Corporations Law, s 1073 Lehmann & Coleman, Taxation Law in Australia, 2nd ed, 1991 Greig & Davis, The Law of Contract, 1987