Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Group Corporation Ltd & Ors [2006] NSWSC 1348

New South Wales Supreme Court

CITATION : Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Group Corporation Ltd & Ors [2006] NSWSC 1348

HEARING DATE(S) : 14-17/11/05, 21-23/11/05

JUDGMENT DATE : 8 December 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : White J

DECISION : 1. Judgment for plaintiff against first defendant in the sum of $231,441.14; 2. judgment for plaintiff against second defendant in the sum of $205.976.50; 3. judgment for third defendant; 4. exhibits may be returned after 28 days.

CATCHWORDS : CONTRACT – Proposed program for assignment of receivables under finance leases of luxury motor vehicles – Whether first defendant agreed to provide funding of up to $50 million per annum – Intention to contract – Where parties signed letter containing some terms intending performance to be conditional on execution of formal agreement containing other terms – Whether parties intended any contract prior to execution of formal agreement – Whether agreements inconsistent – Whether earlier agreement discharged an execution of formal contract – Held agreements were complementary - CONTRACT – Where first defendant did not fail to consider any leasing proposal because none was submitted – No actual breach – Anticipatory breach – Whether contract repudiated by first defendant's advising inability to secure funding – Whether contract terminated or abandoned before repudiation accepted – Held plaintiff terminated contract by accepting first defendant's repudiation - DAMAGES – Where contract terminable on one month's notice – Where virtually certain that first defendant would have exercised its contractual right of termination had performance been insisted on – Held damages for loss of bargain limited to loss of profits which would have been derived during period of notice - TRADE PRACTICES – Misleading and deceptive conduct in relation to supply of financial services – Misrepresentations as to availability of funding – Representation that funding had been obtained from securitiser – First defendant failed to disclose tax features of leasing product to securitiser – Securitiser entitled to reject any particular proposal – Securitiser withdrew funding after becoming aware of particular features of finance leases – Whether plaintiff had been advised of first defendant's non-disclosure of tax features to securitiser – Held representations misleading and were relied on by plaintiff in entering agreements with first defendant - DAMAGES – Whether plaintiff lost opportunity to secure finance for finance leases from other financiers – Held loss of opportunity no more than speculative - DAMAGES – Plaintiff entitled to recover expenditure on program in reliance on representations, less income derived and contractual damages claim – what loss proved - PRINCIPAL AND AGENT – Whether directors liable as primary contravenors of s 12DA of ASIC Act for misrepresentations in letter signed by one of them - ACCESSARIES – Whether director liable as an accessary.