Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd [2007] FCA 1205

FEDERAL COURT OF AUSTRALIA

Fubilan Catering Services Limited v Compass Group (Australia) Pty Ltd [2007] FCA 1205

TRADE PRACTICES – unconscionable conduct – special disadvantage – taking advantage – lodgment of tender for mining company catering contract by landowner company in Papua New Guinea – preparation of tender in conjunction with experienced catering company – catering company to enter into management agreement with landowner company – catering company acquiring competing tenderer – variation of tendered rates to level acceptable to mining company – whether constituted unconscionable conduct by manager against landowner company – independent advice to landowner company – involvement of landowner company representative in process – no special disadvantage – no taking advantage – no unconscionable conduct TRADE PRACTICES – misleading or deceptive conduct - precontractual representations – promissory character – alleged failure to honour promises in performance of contract – no express pleading of absence of reasonable grounds – invocation of s 51A of Trade Practices Act 1974 – inappropriate pleading of section – operation of section – evidential burden on representor – persuasive burden not reversed – misleading or deceptive conduct not established – loss and damage – requirement for causal connection – no causal connection to loss EQUITY – fiduciary duty – whether fiduciary relationship existed – contractual relationship – outside settled categories – reluctance to impose fiduciary relationship – whether fiduciary obligations to landowner company by catering company under Management Agreement with respect to catering contract – no fiduciary relationship – no breach of fiduciary obligation – no relevant loss TORT – negligence – whether breach of duty of care in performance of Management Agreement by management company in management of catering contract for landowner company – whether loss or damage sustained CONTRACT - construction of contract – background of contract – commercial purpose - whether breach – no relevant breach – no relevant loss or damage