Various judgments
Aucare Dairy (Aust) Pty Ltd v Huang (No 5) [2021] FCA 739; Aucare Dairy (Aust) Pty Ltd v Huang (No 6) [2021] FCA 983 (Federal Court, Victorian Registry)
Appeared for Aucare Dairy (Aust) Pty Ltd (Aucare) and its director in an application brought by an interested party, Grandtra Investments Pty Ltd. Grandtra Investments Pty Ltd (Grandtra) made the application following orders made in the primary judgment in the proceedings: Aucare Dairy (Aust) Pty Ltd v Huang (No 3) [2019] FCA 412.
In the primary judgment, Aucare obtained relief against various respondents including the seventh respondent, Nutritional Choice Australia Pty Ltd (NCA). Grandtra was the majority shareholder of NCA. It and various other shareholders of NCA were innocent parties who had been affected by the orders made against NCA. The orders made in the primary judgment included a consent order to the effect that Grandtra may seek compensation (for it and other shareholders of NCA) from Aucare and its director, subject to certain pre-conditions. Grandtra’s application ultimately sought compensation of $2 million for it and various minority shareholders.
The issues on Grandtra’s application included the construction of the compensation order and other consent orders made in the primary judgment; whether the pre-conditions for the payment of compensation under the compensation order had been met; and whether Grandtra and the minority shareholders had suffered a requisite loss warranting the recovery of compensation under the order.
The court dismissed the application, holding that Grandtra had failed in making out its claim for compensation. Grandtra and the minority shareholders were ordered to pay the clients’ costs of the application.
Gabjet Pty Ltd & Anor v Funk Franchise Pty Ltd & Ors [2021] SADC 88; Gabjet Pty Ltd & anor v Funk Franchise Pty Ltd & ors (No.2) [2022] SADC 28; Gabjet Pty Ltd & anor v Funk Franchise Pty Ltd & ors (No.3) [2022] SADC 65 (District Court)
Appeared for two related applicants in a claim against a franchisor, its directors, and related companies for misleading or deceptive conduct, unconscionable conduct, contravention of the Franchising Code of Conduct, and alleged invalid termination of two franchise agreements. One applicant was successful in obtaining a judgment of $557,000 for misleading or deceptive conduct, unconscionable conduct, and contravention of various provisions of the Franchising Code of Conduct. Despite misrepresentations having been found to have been made to the other applicant, it did not establish misleading or deceptive conduct as the misrepresentations were found not to be causative of its loss. However, it was successful in establishing contraventions of the Franchising Code of Conduct and the invalid termination of its franchise and was awarded declaratory relief and damages of $22,000. The clients obtained an order for 80% of their overall costs.
Carey v Balfour [2021] SASC 79
Acted in a successful appeal in the Supreme Court relating to summary judgment granted in the Court below on a claim for indemnity in contract and restitution, based upon a guarantee provided by the client.
Harrison & Anor v Hancock & Ors [2019] SADC 163; Harrison & Anor v Hancock & Ors (No 2) [2020] SADC 103
Acted for property developers in a quantum meruit building claim in the District Court, and in defence of a counterclaim for delay and allegedly defective building work. The client was successful on both the claim and counterclaim and obtained an order for indemnity costs.
Sante Wines Pty Ltd v Paxton Wines Pty Ltd [2018] SASC 104
Acted for a wine company in a debt claim, and in the defence of a counterclaim for alleged breach of a distribution agreement, in the Magistrates Court and in an appeal to the Supreme Court. The client was successful on all issues and obtained an order for indemnity costs.
Rawley Pty Ltd v Bell (No 2) [2007] FCA 583
Acted in the successful defence of a substantial misleading and deceptive conduct claim in the Federal Court.
Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd (No 10) [2012] FCA 25; Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd (No 11) [2013] FCA 241
Acted as junior counsel for a franchisor in the largely successful defence of a representative action in the Federal Court for misleading or deceptive conduct and exclusive dealing.
Ciccarello v Bunton [2011] SASCFC 34
Acted for a former Member of Parliament in an encroachment dispute, in which the client was successful at trial (and in an appeal, before the Full Court of the Supreme Court, on the question of the costs of the trial).
Other Matters
Acted as junior counsel for the State of South Australia in the defence of a multi-million dollar claim in the Supreme Court, involving confidential circumstances.
Acted for a director in a Federal Court action against another director, ex-employees and a competing business established by the ex-employees, in which search and seizure orders were obtained against the respondents and a claim for breach of director’s/fiduciary duty, oppressive conduct and breach of confidence was settled at mediation on confidential terms.
Acted for a leading national franchisor in a Federal Court claim regarding breaches of a Master Franchise Agreement, trademark breaches, passing off, misleading or deceptive conduct and breaches of fiduciary duty, which settled on confidential terms.
Acted for respondents and cross-claimants in the Supreme Court in a dispute between joint venture parties regarding the development of two parcels of land, involving complex factual and legal issues. The issues involved allegations relating to breaches of contract, misleading or deceptive conduct/misrepresentation, unconscionable conduct, oppressive conduct under the Corporations Act, breach of fiduciary duty, constructive trusts, and restitution. The action settled before trial, on confidential terms.
Acted for respondents in the Supreme Court in a claim for alleged breaches of restraints of trade and confidentiality terms contained in employment contracts, as well as alleged use of confidential information in a competing business. The applicants were initially granted interim injunctions on an ex parte basis. The clients opposed the continuation of the restraint of trade injunction orders on various grounds, including that the restraints were invalid, there being an insufficient evidentiary basis for most of the restraints, and on the balance of convenience. The clients were successful in having the ex parte restraint of trade injunctions set aside and a costs order was made in their favour. The matter subsequently settled on confidential terms.
Acted for an applicant in the Supreme Court in a dispute between him and his brother relating to farming land that had been held in the family over many years. The client’s claim was based on equitable estoppel, breach of fiduciary duty, the doctrine of fraud on a power, and relief under section 36 or 37 of the Trustee Act 1936 (SA) or the inherent general supervisory jurisdiction of the court over the administration of trusts. The matter resolved at mediation on confidential terms.
Acted for a construction and engineering company in the District Court in a claim by it for approximately $350,000 owing under a contract for the supply of materials and engineering services to the respondent. The respondent counterclaimed for alleged breaches of contract and negligence in respect of the engineering services provided. A settlement was reached shortly before trial under which consent judgment was entered in favour of the client in the sum of approximately $409,000 (inclusive of interest) and the counterclaim was dismissed, on the basis that the respondent pay the client’s costs of both the claim and the counterclaim.
Acted for an applicant in the District Court in a claim for specific performance of an alleged contract for the sale and purchase of a hotel, in which there was a dispute regarding whether the contract was binding (under the principles in Masters v Cameron). The claim settled at mediation on terms under which a new formal contract was entered into for the purchase of the hotel by the client.
Further Information
E: cmunt@ebchambers.com.au
Link to SA Bar Association profile
