Crossman v Taylor (No 3) [2011] FCA 734

FEDERAL COURT OF AUSTRALIA

Crossman v Taylor (No 3) [2011] FCA 734 Citation: Crossman v Taylor (No 3) [2011] FCA 734

Parties: LYNETTE MARIE CROSSMAN v BRENDAN TAYLOR and WHITE MARINA PTY LTD

File number: SAD 32 of 2010

Judge: BESANKO J

Date of judgment: 29 June 2011

Catchwords: TRADE PRACTICES — Action for misleading or deceptive conduct in contravention of s 56 of the Fair Trading Act 1987 (SA) ('the Act') — where plaintiff and first defendant formed second defendant company for purpose of acquisition and operation of marina business — where plaintiff and first defendant in personal relationship —where first defendant said to have made oral representations which induced plaintiff to enter into the venture including representation that both parties would contribute equally to funding of business — where plaintiff made substantially greater financial contribution to the company — where plaintiff seeks damages or compensation pursuant to ss 84 and 85 of the Act — whether representations were in trade or commerce — whether representations were representations as to future matters for purpose of s 54 of the Act — whether plaintiff entitled to recover all of her contributions CORPORATIONS —claim by plaintiff for equalisation of contributions made to company under s 233 of the Corporations Act 2001 (Cth) on basis of first defendant's oppressive conduct under s 232 — where plaintiff said failure to make equal contributions was oppressive conduct — whether failure to meet a pre-incorporation understanding between incorporators of company is in conduct of a company's affairs for purpose of s 232 — whether even if failure to make contributions was in conduct of a company's affairs an order for equalisation of contributions would be appropriate under s 233 — where other forms of oppressive conduct might be made out but would not lead to relief sought EQUITY — where plaintiff alleged existence of fiduciary relationship between plaintiff and first defendant because of proposed joint venture — no fiduciary relationship between incorporators of company HELD: The defendant had engaged in misleading and deceptive conduct contrary to s 56 of the Act and the plaintiff was entitled to damages in the amount of all of her contributions to the company with interest. The plaintiff did not succeed in the oppressive conduct case or the fiduciary duty case.