Brand v Monks [2009] NSWSC 1454

New South Wales Supreme Court

CITATION : Brand v Monks [2009] NSWSC 1454 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 29 and 30 September 2009 and 1, 2, 12 and 13 October 2009

JUDGMENT DATE : 21 December 2009

JURISDICTION : Equity Division

JUDGMENT OF : Ward J

DECISION : Plaintiff claim dismissed with costs.

CATCHWORDS : CONTRACTS - general contractual principles - discharge, breach and defences to action for breach - defendant contracted to prepare development application for subdivision of plaintiffs' land - defendant agreed to keep confidential information obtained by her in providing commissioned services - defendant reported clearing activity on land to council - whether plaintiff breached confidentiality clause of contract - whether public interest in defendant's disclosure to council - held that information disclosed to council not confidential and not within ambit of clause - public interest in disclosure not established - CONTRACTS - general contractual principles - construction and interpretation of contracts - implied terms - whether implied term that defendant, if she formed view that development application would not succeed, would disclose that view to plaintiffs - whether defendant breached implied term - held that no implied term and, in any event, had such a term been implied, no evidence of breach - EQUITY - general principles - fiduciary obligations - whether defendant owed fiduciary obligation to council - relationship not within recognised categories of fiduciary relationships - held that no fiduciary obligations existed - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation - consumer protection - unconscionable conduct - whether defendant engaged in unconscionable conduct in breach of s 43 of the Fair Trading Act 1987 (NSW) by making disclosures to council - held that defendant did not engage in unconscionable conduct as pleaded - PROCEDURE - pleading - particulars - in earlier version of statement of claim, plaintiffs had pleaded as material facts of unconscionable conduct claim, the defendant's non-disclosure to plaintiffs of communications with council and continued receipt of fees thereafter - as a result of amendment, those facts no longer pleaded in final statement of claim, but appear in particulars - had those facts been pleaded, plaintiffs' claim may have been established, subject to whatever evidence defendant might have adduced - defendant made clear that only responding to case as pleaded - consideration of role of particulars - held that plaintiffs not able to succeed on ground of non-disclosure as material facts not pleaded.