FISHER and ANOR v McDONALD and ANOR [1998] NSWCA 80

FISHER v McDONALD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and STEIN JJA

30 September 1998, 5 November 1998

[1998] NSWCA 80

ESTOPPEL — misrepresentations -

DAMAGES — objective value of time wasted — s41 Fair Trading Act 1987

This appeal dealt with representations made by the defendants during the course of negotiations between them and the plaintiffs about a proposed agreement for a licence by the defendants to the plaintiffs to develop and operate a hard rock quarry on the defendant's property.

The trial Judge found that the defendant's had made representations which were deliberately false and misleading and awarded $59,331.57 for damages with interest for breaches of s42(1) of the Fair Trading Act. The plaintiffs appealed from this decision claiming that damages should have been $93,515.10 with interest and that the trial Judge should have held that the defendant's representations and the plaintiff's reliance upon them founded an estoppel which prevented the defendants denying that the plaintiffs were entitled to specific performance of an agreement between the plaintiffs and the defendants for the development and operation of the quarry.

The estoppel claim was argued on two bases, first, on the basis that there was an unenforceable agreement (or proposed agreement) between the parties, the terms of which were known: Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. In the alternative, the estoppel claim was on the basis that despite the absence of an unenforceable agreement with precise terms, the representations made by the defendants entitled the plaintiffs to estoppel: Plimmer v Mayor of Wellington (1884) LR 9 App Cas 699.

The defendants cross-appealed claiming that there was no evidence to support the trial Judge's finding that neither of the defendants had the intention which their representations expressed.