Delpin Pty Ltd v Nargol Holdings Pty Ltd [2002] NSWSC 422

Reported Decision : (2002) Aust Contract Reports 90-147

New South Wales Supreme Court

CITATION : Delpin Pty Ltd v Nargol Holdings Pty Ltd [2002] NSWSC 422 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3815 of 1997 HEARING DATE(S) : 20-22, 25-28 February; 1, 4-8, 13-14 March 2002 JUDGMENT DATE : 16 May 2002

Delpin Pty Limited (1st Plaintiff/1st Cross Defendant) Donna Burgess (2nd Plaintiff/ 2nd Cross Defendant) Robert A Chow (3rd Plaintiff/3rd Cross Defendant) Robert Elliott (4th Plaintiff/4th Cross Defendant) Joe Gangemi (5th Plaintiff/5th Cross Defendant) Peter Hay (7th Plaintiff/6th Cross Defendant) George Hayunga (8th Plaintiff/7th Cross Defendant) Steven Lee (9th Plaintiff/8th Cross Defendant) PARTIES : Barbara McDonald (10th Plaintiff/9th Cross Defendant) Geoffrey Raymond Morgans (11th Plaintiff/10th Cross Defendant) Ismail Motala (12th Plaintiff/11th Cross Defendant) John Whyte (13th Plaintiff/12th Cross Defendant) Frank Vella (14th Plaintiff/13th Cross Defendant) Nargol Holdings Pty Limited (1st Defendant/Cross Claimant) Bronte Douglass (2nd Defendant) PHLM Pty Limited (14th Cross Defendant) Castle Hill Medical Centre (NSW) Pty Limited (15th Cross Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr J T Gleeson SC with him Mr C Moore (Plaintiffs/Cross Defendants) Mr P M Biscoe QC with him Mr S W Climpson (Defendants/Cross Claimant) SOLICITORS : Manion McCosker (Plaintiffs/Cross Defendants) Hendersons (Defendants/Cross Claimant) CATCHWORDS : CONTRACTS - terms discussed at meetings between parties - whether agreement reached on terms - whether additional terms required - whether necessary consensus to form binding contract without formalization - MISLEADING AND DECEPTIVE CONDUCT AND ESTOPPEL - whether representations if made and if relied upon resulted in damage to person to whom made - whether letter of commitment created obligation to enter agreement for lease - whether obligations under agreement arose from representations - FIDUCIARIES - contracts between individual doctors and company providing services including premises to these doctors - contractual provision requiring doctors to act in utmost good faith towards manager - whether fiduciary relationship established - PASSING OFF - name and telephone number associated with the centre - whether centre manager had property in the name as goodwill of business - doctors at centre continuing to use name after management agreements ended - whether centre manager had established any reputation for the business in that name - no evidence of reputation - EQUITY - REMEDIES - PASSING OFF - no claim for injunction - whether account of profits available if no injunction sought Business Names Act 1962 Fair Trading Act 1987, s42 LEGISLATION CITED : Health Insurance Act 1973 Trade Practices Act 1974 s52 Ashburner's Principles of Equity 2nd Ed p40 Meagher Gummow & Lehane Equity Doctrines and Remedies 3rd Ed 2504 A G v Blake [2000] 4 All ER 385 Bailey v Taylor [1829] 1 Russ & M 73; 39 ER 28 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 91996) 40 NSWLR 63 CASES CITED : Draper v Trist [1939] 3 All ER 513 Fletcher Challenge Limited v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196 Rolin v Steward [1854] CB 595 Smith v The London and South Western Railway Company [1854] Kay 408; 69 ER 173 DECISION : See paragraph 71