Brothers v Park and Anor [2004] NSWCA 241

New South Wales Court of Appeal

CITATION : Brothers v Park and Anor [2004] NSWCA 241 HEARING DATE(S) : 8 July 2004 JUDGMENT DATE : 23 July 2004

JUDGMENT OF : Giles JA at 1; Ipp JA at 98; Wood CJatCL at 99 DECISION : (1) Appeal upheld in part. (2) Set aside the judgment and order for costs given and made on 11 November 2003, and in lieu thereof judgment for $570,112 taking effect on 11 November 2003 and an order that the defendant pay sixty per cent of the plaintiffs' costs. (3) Appellant pay the respondents' costs of the appeal.

CATCHWORDS : Vendor and purchasers - sale of farming property - representation as to Departmental approval to use of part for farming - clause in contract entitling purchasers to terminate if letter evidencing approval not obtained - another clause giving right of entry to prepare ground for crops in locations first approved by vendor - entry and planted and tended crop - representation false - letter not obtainable - purchasers did not terminate - vendor purported to rescind for other reasons - refused to allow purchasers to enter - rescission held ineffective - sale completed - too late to prepare ground for a further crop - whether no causation from false representation because purchasers could have terminated but did not - held causation remained because decision to continue with contract a reasonable decision itself consequential on entry into the contract under the influence of the false representation - whether the loss of profits from the further crop was too remote - held no because, on the evidence, within the contemplation of the parties - whether that loss of profits not caused by refusal of entry because locations for the further crop not proposed and so not approved by vendor - whether this point could be taken on appeal when not taken at trial - whether vendor's conduct dispensed with need for prior approval of locations - held point could be taken and succeeded - damages reduced. D Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310; Allen v Bega Valley Council (CA, 22 December 1994, unreported); Alghussein Establishment v Eton College (1988) 2 WLR 587; Austral Standard Cable Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524; Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Cheall v Association of Professional Executive Clerical and Computer Staff (1983) 2 AC 180; Foran v Wight (1989) 168 CLR 358; Grozier v Tate (1946) 16 LGR (NSW) 57; CASES CITED : Hadley v Baxendale (1854) 9 Exch 341; (1854) 156 ER 145; Henjo Investments Pty Ltd v Collins Marrickville (No 2) (1989) 40 FCR 76; Howard v Pickford Tool Co Ltd (1951) 1 KB 417; Lucas v Centrepoint Freehold Pty Ltd (1984) 1 FCR 110 McAllister v Richmond Brewing Co (NSW) Pty Ltd (1942) 42 SR 187; Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631; Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235. TCN Channel 9 Pty Ltd v Hayden Enerprises Pty Ltd (1989) 16 NSWLR 130; Thompson v ASDA-MFI Group Plc (1988) Ch 241; Water Board v Moustakis (1988) 180 CLR 491. PARTIES : Clive Roy Brothers - Appellant Lindsay Gordon Park and Jill Park - Respondents FILE NUMBER(S) : CA 41141/03 COUNSEL : B Coles QC & A Rogers - Appellant D H Murr SC & J A Trebeck - Respondents SOLICITORS : D G Skinner & Associates - Appellant Holman Webb - Respondents