In the matter of Elsmore Resources Ltd [2016] NSWSC 856

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Elsmore Resources Ltd [2016] NSWSC 856 Hearing dates: 12, 13, 17 and 19 May 2016 Decision date: 23 June 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court holds that the Plaintiff is entitled to judgment against the Third Defendant in the amount of the Plaintiff's actual loss together with any applicable interest. The parties to bring in agreed short minutes of order to give effect to this judgment, including as to costs, within 14 days, and in the event of any disagreement, their respective draft minutes of order and short submissions as to the differences between them. Catchwords: Contracts — Application of Contracts Review Act 1980 (NSW) — General contractual principles – where a settlement agreement was reached which required the defendant to guarantee payments by others to the plaintiff – where the potential liability of the defendant under its guarantee was significantly greater than the plaintiff's actual loss – where the defendant contended that the agreement should be set aside under the Contracts Review Act – whether section 6(2) applies to exclude the application of the Contracts Review Act in circumstances that the relevant business was carried on by a company as opposed to the defendant who entered into the settlement agreement – whether the agreement should be set aside or varied under the Contracts Review Act – whether the contract fails for lack of consideration.

TRADE PRACTICES – Misleading or deceptive conduct claims under s 18 of the Australian Consumer Law – where a settlement agreement was reached which required the defendant to guarantee payments by others to the plaintiff – where one of the persons whose liability the defendant guaranteed had previously failed to make promised payments to the plaintiff – where the defendant contended that failure of plaintiff to disclose the previous failures by that person to make payments to the plaintiff amounted to misleading and deceptive conduct under s 18 of the Australian Consumer Law – whether misleading or deceptive conduct claim is established.