Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154 Hearing dates: 20 and 22 October 2015 Decision date: 04 July 2016 Before: Beazley P at [1]; Meagher JA at [2]; Ward JA at [123] Decision: 1. Appeal allowed. 2. Set aside orders 1 and 3 made by the primary judge on 20 March 2015. 3. Amended summons dismissed. 4. Respondent pay the appellant's costs of the proceedings before the primary judge. 5. Respondent pay the appellant's costs of the appeal. Catchwords: CONTRACTS – formation of contract – tender offer in respect of the operation and management of car parks – whether appellant varied tender offer to give bank guarantee for requested amount of guaranteed income – whether acceptance matched tender offer, or tender offer as varied – whether lack of consensus as to date for commencement of management – whether intention to be bound immediately and to make further contract containing additional terms – whether primary judge erred in finding binding contract between parties

CONTRACTS – termination of contract – whether respondent entitled to terminate – whether respondent ready and willing to perform agreement in its terms at time of termination – whether respondent insisted appellant execute and perform a form of agreement different from contract between parties

TRADE AND COMMERCE – misleading and deceptive conduct – whether appellant represented by submission of tender that it intended to enter into agreement and do what it had promised to do on proper, objective construction of tender conditions –whether respondent engaged in misleading and deceptive conduct by not disclosing information as to number of parking bays in redeveloped car park – whether reasonable expectation that information would be disclosed Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law Local Government Act 1993 (NSW), s 55 Local Government (General) Regulation 2005 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Bill Acceptance Corporation Pty Ltd v GWA Ltd (1983) 78 FLR 171 Concrete Constructions Group v Litevale Pty Ltd [2002] NSWSC 670; 170 FLR 290 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 Foran v Wight [1989] HCA 51; 168 CLR 385 Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 HWT Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 Masters v Cameron [1954] HCA 72; 91 CLR 353 McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2; 165 FCR 230 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; 241 CLR 357 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Ross T Smyth v T D Bailey (1940) 67 Ll L Rep 147; 3 All ER 60 Sagacious Procurement Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; 43 CLR 310 Category: Principal judgment Parties: Secure Parking Pty Ltd (Appellant) Woollahra Municipal Council (Respondent) Representation: Counsel: B Walker SC with S Bogan (Appellant) I M Jackman SC with V Bosnjak (Respondent)