Ebbsfleet Pty Ltd as trustee for Ebbsfleet Superannuation Fund v Semantic Software Asia Pacific Ltd (No 3) [2017] NSWSC 78

Supreme Court New South Wales

Medium Neutral Citation: Ebbsfleet Pty Ltd as trustee for Ebbsfleet Superannuation Fund v Semantic Software Asia Pacific Ltd (No 3) [2017] NSWSC 78 Hearing dates: 30 January – 2 February and 6, 7 and 9 February 2017 Decision date: 15 February 2017 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiffs entitled to damages for breach of warranty that shares in first defendant would triple in value within two years of issue and by damage suffered by reliance on representation to same effect made without reasonable grounds and thus misleading Catchwords: CONTRACT – Share Issue Agreements – warranty that subscribed shares in first defendant would triple in value in two years – proper construction of the agreements – whether they specify exclusive remedy in event shares did not triple in value – whether shares did triple in value – value of patents owned by wholly owned subsidiary of first defendant; INTELLECTUAL PROPERTY – value of such patents; MISLEADING OR DECEPTIVE CONDUCT – admitted representation that shares would triple in value in two years – whether defendants had reasonable grounds to make representation Legislation Cited: Competition and Consumer Act 2010 (Cth) Cases Cited: Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 Cummings v Lewis (1993) 41 FCR 559 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588 Ebbsfleet Pty Ltd as trustee for Ebbsfleet Superannuation Fund v Semantic Software Asia Pacific Ltd (No 2) (Supreme Court (NSW), Stevenson J, 6 February 2017, unrep) Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 McGrath and Honey as joint liquidators of Pan Pharmaceuticals Ltd v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230 Mount Bruce Mining v Wright Prospecting (2015) 256 CLR 104 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Category: Principal judgment Parties: Ebbsfleet Pty Limited as trustee for Ebbsfleet Superannuation Fund (First Plaintiff) McGee Pty Limited as trustee for McGee Superannuation Fund (Second Plaintiff) Semantic Software Asia Pacific Limited (formerly Tralee Technology Holdings Pty Ltd) (First Defendant) Mark William Bradley (Second Plaintiff) (In Person) Representation: Counsel: E A Collins SC (Plaintiffs)