Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq)[2006] FCA 540

FEDERAL COURT OF AUSTRALIA

Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) [2006] FCA 540

CONTRACT – agreement for the sale by respondents of supermarket business to applicant – sale conditional upon obtaining consent of landlord to assignment of lease – consent of landlord not obtained – separate agreement between applicant and respondents to commence proceedings against landlord – agreements terminated by respondents – whether respondents entered into agreement with third party for sale of supermarket while sale agreement with applicant still on foot – whether respondents sought approval from Australian Competition and Consumer Commission to sell supermarket to third party in breach of contractual obligations to applicant – whether respondents failed to disclose material information to applicant in breach of contractual obligations to applicant – whether breaches of contractual obligations, if any, caused applicant's loss or damage EQUITY – whether joint purpose of obtaining landlord's consent gave rise to a fiduciary relationship between applicant and respondents TRADE PRACTICES – whether respondents' lack of disclosure of material information amounted to misleading or deceptive conduct – whether respondents' conduct caused applicant's loss or damage

Trade Practices Act 1974 (Cth) ss 50, 52 and 82 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349cited BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 referred to Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382 cited Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 referred to Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) formerly Franklins Management Services Pty Ltd [2005] FCA 1011 referred to Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 referred to Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 referred to Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR ¶41-703 cited GEC Marconi Systems v BHP-IT (2003) 128 FCR 1 cited Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 referred to Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 cited Jones v Dunkel (1959) 101 CLR 298 cited Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 cited Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 referred to Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 cited Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 cited Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 discussed United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 cited R Meagher, D Heydon and M Leeming, Meagher Gummow & Lehane's Equity: Doctrines & Remedies (2002, 4th ed)