Recent Cases

Cassaniti v Katavic (No 2) [2023] NSWCA 107 (23 May 2023) (Gleeson, Kirk and Adamson JJA)


Catchwords:


CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Where unitholders’ agreement represented to be “standard” or “simple” — Where agreement contained unusual terms imposing high interest obligation on excess capital contributions — Where such terms inconsistent with prior informal agreement of parties

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Reliance —Whether representee relied on representation given commercial imperatives — Where unitholders’ agreement signed in informal, quasi-familial context — Where representee would not have entered agreement had effect of impugned clauses been disclosed

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Causation of loss — Where informal agreement not binding — Where claimants entered into unitholders’ agreement in reliance upon misrepresentation — Whether claimants proved probable counterfactual on which loss was alleged — Where “no transaction” case pleaded and run at trial — Where “different transaction” case advanced on appeal — Where counterfactual not put to relevant witness — Whether new point should be permitted on appeal

EQUITY — Trusts and trustees — Breaches of trust — Whether payment by mistake — Whether mistaken payment became asset of trust — Where payment used to discharge trust liability — Where security later given over trust property — Whether trustee breached duty by preferring interests of unitholder

APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Whether declaration that terms of contract void finally determined rights of parties — Where other substantive issues and consequent relief left undetermined