CFA Group v Mars Trading [2001] NSWSC 112

New South Wales Supreme Court

CITATION : CFA Group v Mars Trading [2001] NSWSC 112 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50020/00 HEARING DATE(S) : 26/02/01, 27/02/01 JUDGMENT DATE : 8 March 2001

CFA Group Services Pty Limited - First Plaintiff CFA Administration Pty Limited - Second Plaintiff Mars Trading Pty Limited - First Defendant PARTIES : Yengrin Pty Limited - Second Defendant Macadamia Properties Pty Limited - Third Defendant Ellicott Pty Limited - Fourth Defendant Carbest Pty Limited - Fifth Defendant Graham Edward Hayes - Sixth Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr S.T. White/Ms N. Obrart - Plaintiffs Mr I.M. Wales SC - Defendants SOLICITORS : Clayton Utz Helliars City Solicitors CATCHWORDS : Penalty: Held that on a proper construction of the Agreement and in all the circumstances the requirement to pay a greater amount did not constitute a penalty - Breach: Held no breach of contract and that, in any event, the breach alleged was not essential and did not go to the root of the contract - Damages: Held that the plaintiffs had established that the difference between the original contract price and the ultimate sale price was the proper amount of damages, and that the defendant had not established that there was a failure by the plaintiff to mitigate - Non-Fulfilment of Conditions: Held that the defendants' conduct dispensed the plaintiffs from the obligations of fulfilling conditions. Cheshire & Fifoot "Law of Contract", 7th Australian Edition O'Dea & Ors v All States Leasing System (WA) Pty Limited & Ors (1983) 152 CLR 359 Multiplex Constructions Pty Limited v Abgarus Pty Limited & Anor (1992) 33 NSWLR 504 W.T. Malouf Pty Limited v Brinds Limited (1980) 52 FLR 442 Amev Finance Limited v Artes Studio Thoroughbreds Pty Limited (1989) 15 NSWLR 564 CASES CITED : Tramways Advertising Pty Limited v Luna Park (NSW) Limited (1938) 38 SR (NSW) 632 Sacher Investments Pty Limited v Forma Stereo Consultants Pty Limited & Ors [1976] 1 NSWLR 5 TCN Channel Nine Pty Limited v Hayden Enterprises Pty Limited (1989) 16 NSWLR 130 Goldburg v Shell Oil Company of Australia Limited (1990) 95 ALR 711 Peter Turnbull & Company Pty Limited v Mundus Trading Company (Australasia) Pty Limited (1954) 90 CLR 235 Mahoney v Lindsay & Ors (1981) 55 ALJR 118 DECISION : (1) Judgment for the First Plaintiff against each of the First, Fifth and Sixth Defendants in the sum of $868,390.89, inclusive of interest, in respect of the Kernel Sale Agreement and any payment by one will be a pro tanto discharge of the obligation of the other.; (2) Judgment for the First Plaintiff against each of the First, Second (to a limit of $450,000), Third, Fourth, Fifth and Sixth Defendants in the sum of $787,471.22, inclusive of interest, in respect of the breach of the Sale Agreement for Converys Lane and any payment by one will be a pro tanto discharge of the obligations of the others.; (3) Judgment for the Second Plaintiff against each of the First, Second (to the limit of $450,000), Third, Fourth, Fifth and Sixth Defendants in the sum of $112,495.88, inclusive of interest, in respect of the breach of the Sale Agreement for Dunoon and any payment by one will be a pro tanto discharge of the obligations of the others.; (4) Judgment for the Plaintiffs against each of the Fourth, First, Second (to a limit of $900,000), Third, Fifth and Sixth Defendants in the sum of $762,316.91, inclusive of interest, in respect of the breach of the Option Deeds and any payment by one will be a pro tanto discharge of the obligations of the others.; (5) Judgment for the First Plaintiff against each of the First, Second (to a limit of $450,000), Third, Fourth, Fifth and Sixth Defendants in the sum of $7,936.76, inclusive of interest, in respect of the breach of the Plant, Equipment and Names Sale Agreement and any payment by one will be a pro tanto discharge of the obligations of the others.; (6) Judgment against all Defendants in respect of the Plaintiffs' costs of $105,727.26 and any payment by one will be a pro tanto discharge of the obligations of the others.; (7) The Defendants pay the Plaintiffs' costs.; (8) Exhibits be returned at the expiration of twenty eight (28) days from to-day's date unless within that time an appeal against this decision has been brought.