Sauer v Regal Resources Ltd [2016] NSWCATCD 95

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sauer v Regal Resources Ltd [2016] NSWCATCD 95 Hearing dates: 17 November 2016 Decision date: 01 December 2016 Jurisdiction: Consumer and Commercial Division Before: T Simon, Senior Member Decision: 1. The application is dismissed Catchwords: CONSUMER CLAIM – shares – property – services – damage – loss of opportunity Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth) Corporation Act 2001 (Cth) Fair Trading Act 1987 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [ 1948] HCA 28 Badenach v Calvert [2016] HCA 18 Category: Principal judgment Parties: Warwick Sauer (applicant) Regal Resources Ltd (respondent) Representation: Applicant in person Ms Chen - solicitor for the respondent File Number(s): GEN 16/39791 Publication restriction: Nil

Reasons for the Decsion

The Application 1. The application was lodged with the Tribunal on 5 September 2016. 2. The applicant appeared in person. The applicant is a solicitor. The respondent appeared represented by a solicitor, Ms Chen, by telephone. 3. The applicant was seeking a total amount of $13,994.06 for losses he alleged occurred as a result of a breach of contract. The only cause of action he has alleged is breach of contract and makes no claim on other grounds, including any of the causes of action contained in the Australian Consumer Law. The applicant is a shareholder of the respondent Corporation. The applicant bringa this matter as a consumer claim alleging that the respondent failed to deliver what it had promised in a prospectus. 4. The parties had the opportunity to exchange documents. The Tribunal received a folder of documents from the applicant on 3 November 2016. That folder has been marked exhibit 1. The Tribunal allowed leave for an amendment to the application for the applicant to seek the costs of making an application to the Australian Government Takeovers Panel. The applicant confirmed that all the documents the applicant was seeking to rely on were contained in the folder marked as exhibit 1. 5. The Tribunal received the respondent's documents on 18 October 2016, 21 October 2016 and 24 October 2016. On 17 October 2016 the respondent provided a bundle including most of those documents previously filed, including an index and pagination. It became apparent during the hearing that some of the previous documents provided by the respondent were not contained in the bundle and further documents were collated with that bundle and page numbered. The respondent's bundle of documents was subsequently marked exhibit 2. The respondent confirmed that all the documents the respondent was seeking to rely on were contained in the folder marked as exhibit 2. 6. The Tribunal confirmed that each party had received the other party's documents and had been given an opportunity to view them. The applicant had not provided his own statement at hearing and gave his evidence orally at the hearing. It was raised with the respondent as to whether they sought an adjournment to deal with anything raised and they confirmed they could proceed. Further, the respondent was given the opportunity to lead further evidence from their witness Mr Timothy Lyons in relation to the new assertions raised by the applicant in his oral evidence. The respondent was given the opportunity to cross-examine the applicant. The applicant was given the opportunity to cross examine the respondent's witness Mr Timothy Lyons who had provided a written statement prior to the hearing. Exhibits 1 and 2 and the party's oral evidence given at the hearing have been considered by the Tribunal in coming to this decision.