GOWAY Travel Pty Limited v Critchley & Anor [2024] NSWSC 2

Supreme Court New South Wales

Medium Neutral Citation: GOWAY Travel Pty Limited v Critchley & Anor [2024] NSWSC 2 Hearing dates: 13, 14, 15, 16 & 17 February, 3 May, and 2 June 2023. Date of orders: 15 December 2023 Decision date: 09 January 2024 Jurisdiction: Equity Before: Slattery J Decision: Declaration made that from 15 March 2015 the defendants were not entitled to deal with the plaintiff on the basis that Ms Comito's had ostensible authority to act on behalf of the plaintiff with respect to the Staff Family and Friends travel scheme. Orders made for the defendants to restore to the plaintiff the net benefits received by the defendants under the Staff Family and Friends travel scheme from 15 March 2015 and for account to be taken of those benefits. Directions made for the resolution of consequential issues. Catchwords: EQUITY – first limb of Barnes v Addy (1874) LR 9 Ch App 244 - the plaintiff sold international travel services to the defendants over a five-year period between 2013 and 2018 – some of the plaintiff's travel services were sold through a "staff, family and friends" discounted travel scheme – defendants were offered discounted travel at rates substantially below market rates and below the likely wholesale cost of providing the travel services – the defendants were purchasers of those services – in July 2018 the plaintiff discovers that a rogue employee is responsible for irregularities in its staff family and friends travel scheme and that the plaintiff's travel services have been marketed and sold through the scheme without its authority and in breach of its employee's fiduciary duty to the plaintiff – the plaintiff seeks recovery of the cost of the travel services supplied to the defendants by the rogue employee – whether the defendants were aware that the rogue employee was selling them travel services without the authority of the plaintiff – whether the plaintiff is entitled on the pleadings to restitution from the defendants on the grounds the defendants made payments for the market value of the travel services supplied to or at the direction of the defendants by mistake or under a total failure of consideration – whether the defendants had the requisite level of knowledge that the rogue employee was acting in breach of her fiduciary duty to her employer, the plaintiff, to attract Barnes v Addy first limb liability – whether the defendants received all travel services from the plaintiff with some of them were supplied to other persons. Legislation Cited: Evidence Act 1995, ss 128, 140 Cases Cited: Baden v Société Générale pour Favoriser le Developpement du Commerce et de l'Industrie en France [1992] 4 All ER 161 Banque Commerciale S A (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Barnes v Addy (1874) LR Ch App 244 Break Fast Investments Pty Ltd v Rigby Cooke Lawyers [2022] VSCA 118 Briginshaw v Briginshaw (1938) 60 CLR 336 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Egyptian International Foreign Trade v Soplex Whole Supplies Ltd (The 'Raffaella') [1985] 2 Lloyd's Rep 36 El Ajou v Dollar Land Holdings Plc & Anor [1994] 2 All ER 685 Farah Constructions Pty Ltd v Say-Dee Pty Limited (2007) 230 CLR 89 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 G v H (1994) 181 CLR 387 Grimaldi v Chameleon Mining NL & Anor (No. 2) (2012) 200 FCR 296 Hoare v McCarthy (1916) 22 CLR 296 Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920 Jones v Dunkel (1959) 101 CLR 298 Kalls Enterprises Pty Ltd v Baloglow [2007] NSWCA 191 Moriah War Memorial College Association v Augustin Robert Nosti [2020] NSWSC 942 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 Orbit Travel Services Pty Ltd v Trustees - Travel Compensation Fund & Ors (unreported, 24 March 1998) Orbit Travel Services v Travel - Compensation Fund [1999] NSWCA 63 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Payne v Parker [1976] 1 NSWLR 191 Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246 Schellenberg v Tunnel Holdings Pty Limited (2000) CLR 121 Smith v Peter & Diana Hubbard Pty Ltd [2006] NSWCA 109 Song v Ying [2010] NSWCA 237 Turner v O'Bryan–Turner (2022) 107 NSWLR 171 Wilhemsen Investments Pty Ltd v SSS Holdings Pty Ltd [2019] NSWCA 32 Category: Principal judgment Parties: Plaintiff: GOWAY Travel Pty Limited ACN 002 767 839 First Defendant: Robert Critchley Second Defendant: Lynette Tarbuck Representation: Counsel: Plaintiff: A.E. Maroya, S. Scott Defendants: M.P. Cleary