Case: James v Australia And New Zealand Banking Group Ltd (1986) 64 ALR 347
Outcome: referred to
In any event, so Foundation's submissions continued, any representation to the effect that Foundation would work to grow the Business was asserted to have been made 'on reasonable grounds', Foundation emphasising that '... given Foundation's ongoing operation as a large public company operating many medical centres, [then] without direct proof of intention on the part of Foundation not to meet the Benchmark, the reasonable grounds are established', and further that '[i]t is not sufficient that matters represented may have been subject to a change of mind'. Foundation referred in that regard to dictum in James v Australia And New Zealand Banking Group Ltd and Others (1986) 64 ALR 347 at 372 where Toohey J drew attention to principles to the effect that '[t] he mere fact that representations as to future conduct or events do not come to pass does not make them misleading or deceptive', though further that '[n]evertheless, a statement relating to the future may contain an implied statement as to present or past fact [and] may represent impliedly that the promisor has a present intention to make good the promise and it may represent impliedly that he has the means to do so' . Of course so much often depends upon the context to and the subject matter of a representation, but in any event Foundation submitted that the decision 'relating to relocation' was inherently of that general character. 116 In addressing the 'primary objective' theme of clause 3.9 of the Business Sale &amp; Purchase Agreement, that clause being the provision of the Agreement per se upon which Idoshore of course placed significant reliance, Foundation asserted that 'an objective' was to be distinguished from a guarantee or warranty and that clause 3.9 was 'couched in appropriate terms as an objective'. It was further contended that if the purpose of the clause was to provide a guarantee or warranty 'it would have been phrased in definitive terms'. Achievement of growth as such, without nomination or specification for instance of a minimum or maximum standard or parameters for the growth, carries somewhat imponderable implications of difficulty in a contractual setting such as clause 3.9. In any event that clause has significance independently concerning the making by Foundation of 'any material changes' without consultation or consent. 117 As to the operation of clause 3.10 of the Business Sale &amp; Purchase Agreement, which records the unspecific themes as to Foundation's stated intention '... to grow and expand the Business and, subject to clause 3.9, [not to] impede the Purchaser', Foundation submitted that the same constituted a 'motherhood' statement, since '[n]o purchaser would pay $1.125 million dollars for a business without intending to grow and expand it'. Nevertheless contractual significance should be assigned to that contractual acknowledgment, however confined in scope it may be. Foundation submitted further those contractual passages were not to be interpreted as saying that 'performance can be expected to automatically continue at existing levels or outstrip them'. Foundation was already engaged of course in business operations similar to, though apparently much more substantial than, those conducted by Idoshore at the OSMC at the time the Agreement was formed.