Case: Winterton Constructions Pty Ltd v Hambros Australia Ltd [1992] FCA 582 ; (1992) 39 FCR 97
Outcome: considered
Of particular relevance in the circumstances of the case before me are comment of Hill J in Winterton Constructions Pty Ltd v Hambros Australia Ltd [1992] FCA 582 ; (1992) 39 FCR 97 at 114 where his Honour observed: Obviously, it is difficult to see how a mere silence could, of itself, constitute conduct which is misleading or deceptive or likely to mislead or deceive. However, if the circumstances are such that a person is entitled to believe that a relevant matter affecting him or her adversely would, if it existed, be communicated, then the failure to so communicate it may constitute conduct which is misleading or deceptive because the person who ultimately may act to his or her detriment is entitled to infer from the silence that no danger of detriment existed. Thus, where a duty to speak is imposed, silence may constitute misleading or deceptive conduct. (emphasis added) 205 In summary the applicants submitted: &#8226; the evidence shows that the respondents knew that Mr Tracy had no experience with citrus; &#8226; Mr Tracy's evidence identified the importance of the continued presence of the horticulturalist; &#8226; Mr Burns' written evidence was that in July 2004 he notified Mr Breed that it was not his present intention to stay at the orchards after their sale; &#8226; any distinction drawn by the respondents between formal notice of Mr Burns' resignation, and the respondents' knowledge of Mr Burns' decision to resign, is one of semantics only; &#8226; in the context of a potential purchaser known by the respondents to have no citrus experience it was incumbent on them to disclose their knowledge of Mr Burns' decision to Mr Tracy. 206 In relation to this issue the respondents submitted in summary: &#8226; In fact, Mr Burns had not informed the first respondent that he intended to resign in November 2004. &#8226; Mr Burns' evidence was that he had considered travelling in 2004, that he had discussed this with Mr Breed but had not made any definite plans, and that he was waiting to see who purchased the orchards before making any decision. &#8226; It was Mr Tracy's acquisition of the orchards which caused Mr Burns to finally decide to leave. &#8226; Mr Burns gave notice of resignation on or about 11 February 2005. Prior to that date Mr Burns did not inform Mr Breed or any other person at Sunstate of his resignation. &#8226; Mr Tracy had not informed Mr Strahley that the presence of Mr Burns was an important or material consideration in the decision to proceed to enter into the agreements. Mr Burns' continuing employment was not one of the conditions negotiated to be included in any agreement between the parties. If Mr Burns' continuing employment was important to Mr Tracy, Mr Tracy could easily have identified it as a condition of agreement with the first respondent. &#8226; Mr Tracy's evidence was that prior to 17 February 2005 he had spoken with Mr Burns about future opportunities at the orchard but that Mr Burns did not provide any commitment to stay on with Mr Tracy. &#8226; Another horticulturalist could easily have been employed. In any event, Mr Burns was only one member of the management team. Mr Papacek and Mr Owen-Turner were horticultural experts who were available, had been retained by Sunstate, and could have been retained after the purchase of the properties. 238 However in relation to the issue of the Ellendale fruit crop on the land being held on the trees past their pick date, I am not persuaded that the first respondent owed any such obligation. No evidence was given by Mr Tracy as to his expectations in relation to the Ellendales. Nor has it been shown that the fact of late picking of fruit, in the context of operating orchards, was information which required disclosure. Further, even assuming that the first respondent was silent in relation to this issue, the applicants have not shown how such conduct lead the applicants into error within the meaning of s 52 so as to constitute conduct of a misleading or deceptive nature ( Taco Bell 42 ALR 177). For example it has not been demonstrated that: &#8226; there was any expectation on the part of the applicants that the Ellendales would be picked at any particular time; or &#8226; information concerning any delays in picking of the Ellendales would be communicated to the applicants, so that silence on the matter meant that picking had not been delayed; or &#8226; even if picking was delayed, the applicants would suffer detriment ( Winterton Constructions Pty Ltd [1992] FCA 582 ; 39 FCR 97 at 114); or &#8226; information as to the timing of the picking of the Ellendales was material to any decision of the applicants (cf Fraser 55 FCR 452).