mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wilcox, Re; Ex parte Venture Industries Pty Ltd (No 2 ) (1996) 72 FCR 151
Outcome: referred to
The principles by which a court proceeds in determining whether costs should be awarded on a basis other than a party and party basis are well known and I will not repeat them: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234 per Sheppard J; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151; NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77 (" NMFM "). Various circumstances have been identified in the cases as warranting a special order. It is trite to say that the discretion is a broad one, no two cases are alike, and the categories or circumstances in which a court will make a special order are not closed.
Case: Abigail v Lapin [1934] UKPCHCA 1 ; (1934) 51 CLR 58
Outcome: followed
Chappell wrote much of the wording of the brochure. He wrote letters to the investors saying that Austcorp was the developer. While he may not have done this with any intention to mislead people, he did it to publicise the fact that Austcorp was the active parent company responsible for the Austcorp group's overall development activities throughout Australia, including that of the resort. Austcorp was prepared to allow a loose and ambiguous representation, connecting Austcorp with the development, to be made in the brochure. In my opinion, this is a case where it is clear that any Austcorp company which in fact had an association with the development could be taken to have published the brochure: Webb v Bloch (1928) 41 CLR 331 at 363-366 per Issacs J; see also Abigail v Lapin [1934] UKPCHCA 1 ; (1934) 51 CLR 58 at 70-71 per Lord Wright.
Case: Australian Breeders Co-Operative Society Ltd v Jones (1997) 150 ALR 488
Outcome: cited
Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 at 543-545 Wilcox and Lindgren JJ (with whom Lee J agreed on this point (at 560)) noted that the trial judge (Davies J) found that taxation benefits, which applicant investors in a horse breeding syndicate had obtained, should be taken into account in reduction of damages for their losses up to the time at which they terminated the breeding partnership. However, in that case, Davies J had refused to make an allowance for those taxation benefits in relation to the years of income after termination and awarded compensation on the basis that those damages not be taxable in the hands of the applicants. There was no issue in the appeal as to the question of taking into account taxation benefits.
Case: Banco de Portugal v Waterlow &amp; Sons Limited [1932] UKHL 1 ; [1932] AC 452
Outcome: discussed
argued that it was unreasonable for the applicants not to have sold because the market was apparently rising when they realised that the representations had been falsified on Mustara's collapse. I reject this argument. It seeks to have things both ways, when Austcorp itself created the difficulty for the applicants. In Banco de Portugal v Waterlow &amp; Sons Limited [1932] UKHL 1 ; [1932] AC 452 at 506 Lord Macmillan tellingly observed that it was often easy, after an emergency had passed, to criticise the steps which had been taken to meet it, but that such criticism did not come well from those who themselves had created the emergency. He said: "The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken." Although his Lordship spoke of the principle apposite to an action for damages for a breach of contract, I am of opinion that his remarks also apply to an action to recover loss or damage under s 82. That principle accords with the statutory purpose. It would be unreal to argue that every purchaser who had been misled, as the present three applicants claim, into buying an apartment in the resort should have put their property on the market in 2003 for sale. The market would have been flooded as it was from 2004 onwards. In my opinion, Mr Owers acted reasonably in his decision to offer the property for sale when he did and the steps he took in the difficult situation in which he found himself. 7.2 Ms Tan-Bounkeua's position
Case: Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95
Outcome: applied
argued that it could not be liable for Mr Walker's or PRD's conduct in distributing the brochure or leaflet or making the representations in the promotional material simply because of its involvement in their preparation or printing. It contended that Saatchi 134 FCR at 585 [32]-[39] supported this argument. Nothing that Moore and Mansfield JJ said there suggested that a promoter or principal (as opposed to an advertising agency that was an independent contractor) could not be liable in circumstances like the present. Nor does any delay between Austcorp's design of the brochure and leaflet, and their dissemination to the applicants prevent Austcorp being held to have made the representations complained of. Austcorp's conduct, when viewed as a whole, taking account of all the surrounding circumstances, brought about what it wanted; namely that the promotional material would be given to persons in the position of the applicants and that they would be induced to purchase an apartment: Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95 at 106-107 per Bowen CJ, Beaumont and Wilcox JJ. PRD and Mr Walker, as much as Austcorp's subsidiaries, were intermediaries in Austcorp's marketing plan: Barton 3 FCR at 107.
Case: Benlist Pty Ltd v Olivetti Australia Pty Limited [1990] ATPR p41-043
Outcome: discussed
is a question of fact whether a disclaimer or a contractual provision modified the antecedent or other conduct as Gleeson CJ, Hayne and Heydon JJ illustrated in Butcher 218 CLR at 613-614 [70]-[72] in discussing what Burchett J had said in Benlist Pty Ltd v Olivetti Australia Pty Limited [1990] ATPR p41-043 at 51,590. In both those cases there were disclaimers in marketing material. Burchett J said: "It has been held on many occasions that the perpetrator of misleading conduct cannot, by resorting to such a clause, evade the operation of [the Act]. Of course, if the clause actually has the effect [of] erasing whatever is misleading in the conduct, the clause will be effective , not by any independent force of its own, but by actually modifying the conduct . However, I should think it would only be in rare cases that a formal disclaimer would have that effect. ... In the present case, the suggestion of the suitability of the building for strata title conversion might continue to influence the mind of a prospective purchaser notwithstanding his awareness of the existence of a disclaimer clause, which did not single out the particular representation, but purported to apply generally to every detail stated in the investment report. If it were permissible to avoid the operation of [the Act] by such a clause, it would be all too easy to make representations in the confidence that they would be acted upon, and then withdraw them in the confidence (equally important for the securing of the desired business) that the withdrawal would not be acted upon ." (emphasis in bold added)
Case: Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63
Outcome: discussed
submitted that an adverse inference should be drawn against the applicants for failing to call their solicitors: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 ; Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63. Austcorp argued that the applicants could and should have called the solicitors who acted for them on the transactions and that their failure to do so could be used, not only to support the proposition that the solicitors' evidence would not advance their cases but also to suggest that they had not discharged their onus of proof. It that it was within the applicants' power to call their solicitors and their evidence should be assessed as Lord Mansfield CJ described in Blatch 1 Cowp at 65: "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was within the power of one side to have produced, and in the power of the other to have contradicted."
Case: Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68
Outcome: cited
am satisfied that when making each of the representations complained of Austcorp was engaged in conduct in trade or commerce within the meaning of s 52 of the Act. The promotion and sale of developments in which it had an interest was a fundamental business activity of Austcorp. That conduct was quintessentially of a trading and commercial character. It included promotional activities in relation to, or for the purposes of, the supply of goods or services including land: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604 per Mason CJ, Deane, Dawson and Gaudron JJ; see too Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at 108 [142] per Tamberlin, Mansfield and Allsop JJ.
Case: Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256
Outcome: referred to
Courts have long employed commonsense in determining whether or not a statement is a mere puff, as Lindley LJ explained in the great case of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 at 261 in relation to the defendant's assertion that its promise to pay a &#163;100 reward to anyone who contracted influenza after having used its smoke ball was a mere puff which meant nothing. He said ( Carlill [1893] 1 QB at 261-262): "Was it a mere puff? My answer to that question is No, and I base my answer upon this passage: '1000 l . is deposited with the Alliance Bank, shewing our sincerity in the matter'. Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all. The deposit is called in aid by the advertiser as proof of his sincerity in the matter that is, the sincerity of his promise to pay this 100 l . in the event he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it." (emphasis added) AL Smith LJ dismissed the suggestion that the reference to the deposit of &#163;1,000 could be construed as a mere expression of confidence in the wares which the defendant had to sell: Carlill [1893] 1 QB at 273. And, as Black CJ, von Doussa and Cooper JJ said in Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 483E-G, the use of an expression such as "free" in connection with shares, depending on the context, can create a notion that the shares might be acquired without significant loss or outgoing, even though in other contexts in ordinary life people might understand similar usages differently. It depends on the context in which words are used as to whether or not their use is misleading or deceptive or likely to mislead or deceive.
Case: Carminco Gold &amp; Resources Ltd v Findlay &amp; Co Stockbrokers (Underwriters) Pty Ltd [2007] FCAFC 194 ; (2007) 243 ALR 472
Outcome: applied
significance of this method of doing business, which had a number of practical attractions to Austcorp as Mr Tan explained, is that third parties with whom it dealt may not always have been aware of the underlying web of relationships. Austcorp was the apparent contracting and paying party. The invoices were addressed to and paid by it. But more significantly, the various individuals acting for Austcorp, were in fact its actual officers or employees and gave people with whom they dealt their personalised Austcorp business cards. Hence, Mr Walker wrote to Mr Chappell in the capacity that his business card identified, namely the managing director of Austcorp. Of course, the mere fact that Austcorp did not disclose to the third party the name of any subsidiary for which it was acting as an agent, did not mean that Austcorp necessarily became a party to the contract provided it disclosed that it was acting as an agent: Carminco Gold &amp; Resources Ltd v Findlay &amp; Co Stockbrokers (Underwriters) Pty Ltd [2007] FCAFC 194 ; (2007) 243 ALR 472 at 473 [1] , 479 [22]-[23] per Finn, Rares and Besanko JJ. If a person is to be found objectively to have no personal liability as a party under a contract he, she or it has made, it is because the person has disclosed at or before the time of contracting that they do so as an agent, even if the identity of the principal is not then disclosed. The general principle in contract is that " ... if a man signs a written contract, he is considered as the contracting party, unless it clearly appears that he executes it as agent only": Cooke v Wilson [1856] EngR 883 ; (1856) 1 CB (NS) 153 at 164 per Crowder J, see too at 162 per Cresswell J; Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 558E-F per McHugh JA; H O Brandt &amp; Co v H N Morris &amp; Co Ltd [1917] 2 KB 784 at 793-794 per Viscount Reading CJ, 796-797 per Scrutton LJ. The same principle must apply where the contract is made orally. The question of whether a person so acts as to be a party is determined objectively: Carminco 243 ALR at 479 [23].
Case: Cassidy v Saatchi &amp; Saatchi Australia Pty Ltd [2004] FCAFC 34 ; (2004) 134 FCR 585
Outcome: followed
may be so but its consequence is that Austcorp's submission fails at its threshold. Austcorp conducted itself in trade and commerce as a promoter of the resort. It did so in clear language using its exact name. It also associated itself by the use of the logo on the promotional material. The logo was not used in a legal document by lawyers. It was used in trade or commerce by Austcorp to convey its association with the project, whatever may have been the legal formalities and structures in which subsidiaries of Austcorp may have participated. The message which Austcorp wished to pass to the public was, that it, as the ultimate owner of the brand, was responsible for the development. It cannot accept the credit and refuse to take responsibility under the Trade Practices Act for its conduct: cf: see Gardam v George Wills &amp; Co [1988] FCA 194 ; (1988) 82 ALR 415 at 427-428 per French J; Cassidy v Saatchi &amp; Saatchi Australia Pty Ltd [2004] FCAFC 34 ; (2004) 134 FCR 585 at 593 [39] per Moore and Mansfield JJ, 599 [65] per Stone J; see too Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at [40] , [48] per Keane JA (Williams JA and Atkinson J agreeing at [1], [145]). As Keane JA observed the presence of a logo and name in a brochure or similar material can mean that a reader will be entitled to conclude that the contents of the brochure state the reasons for the involvement of the person whose logo and name were used. I am satisfied that Austcorp made the representations even if one or more of its subsidiaries did too. Two entities can contravene s 52 of the Act simultaneously: Cassidy v Saatchi &amp; Saatchi 134 FCR at 592 [31], [37] per Moore and Mansfield JJ, see too at 588 [13], 591 [28], 599 [65] per Stone J. Austcorp argued that it could not be liable for Mr Walker's or PRD's conduct in distributing the brochure or leaflet or making the representations in the promotional material simply because of its involvement in their preparation or printing. It contended that Saatchi 134 FCR at 585 [32]-[39] supported this argument. Nothing that Moore and Mansfield JJ said there suggested that a promoter or principal (as opposed to an advertising agency that was an independent contractor) could not be liable in circumstances like the present. Nor does any delay between Austcorp's design of the brochure and leaflet, and their dissemination to the applicants prevent Austcorp being held to have made the representations complained of. Austcorp's conduct, when viewed as a whole, taking account of all the surrounding circumstances, brought about what it wanted; namely that the promotional material would be given to persons in the position of the applicants and that they would be induced to purchase an apartment: Barton v Croner Trading Pty Ltd [1984] FCA 195 ; (1984) 3 FCR 95 at 106-107 per Bowen CJ, Beaumont and Wilcox JJ. PRD and Mr Walker, as much as Austcorp's subsidiaries, were intermediaries in Austcorp's marketing plan: Barton 3 FCR at 107.
Case: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594
Outcome: cited
am satisfied that when making each of the representations complained of Austcorp was engaged in conduct in trade or commerce within the meaning of s 52 of the Act. The promotion and sale of developments in which it had an interest was a fundamental business activity of Austcorp. That conduct was quintessentially of a trading and commercial character. It included promotional activities in relation to, or for the purposes of, the supply of goods or services including land: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 604 per Mason CJ, Deane, Dawson and Gaudron JJ; see too Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256 ; (2005) 148 FCR 68 at 108 [142] per Tamberlin, Mansfield and Allsop JJ.
Case: Cooke v Wilson [1856] EngR 883 ; (1856) 1 CB (NS) 153
Outcome: applied
general principle in contract is that " ... if a man signs a written contract, he is considered as the contracting party, unless it clearly appears that he executes it as agent only": Cooke v Wilson [1856] EngR 883 ; (1856) 1 CB (NS) 153 at 164 per Crowder J, see too at 162 per Cresswell J; Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 558E-F per McHugh JA; H O Brandt &amp; Co v H N Morris &amp; Co Ltd [1917] 2 KB 784 at 793-794 per Viscount Reading CJ, 796-797 per Scrutton LJ. The same principle must apply where the contract is made orally. The question of whether a person so acts as to be a party is determined objectively: Carminco 243 ALR at 479 [23].
Case: Cummings v Lewis (1993) 41 FCR 559
Outcome: followed
or honest belief in a representation is not sufficient to amount to having reasonable grounds for making it: Cummings v Lewis (1993) 41 FCR 559 at 565 per Sheppard and Neaves JJ. They said in obiter dicta ( Cummings 41 FCR at 566): "Evidence of reasonable grounds may be established by evidence other than that of the persons who are alleged to have made particular representations as to a future matter. Indeed, as in so many other areas, a court may find the overall probabilities to which the circumstances of a given case give rise, the background to it and the conduct of parties prior to conversations taking place as providing better guides to whether or not they had particular states of mind or whether particular factors existed which would establish evidence of something such as reasonable grounds. It was the overall circumstances of the case which enabled his Honour to say, in relation to both Mr Leckie and Mr Lewis, that each genuinely believed the encouraging assertions which his Honour found them to have made. If one changes the exercise to an inquiry, not into genuine or honest belief, but into whether there were reasonable grounds, it is again the overall circumstances of the case which will provide more reliable guidance than would oral evidence on the part of interested parties." I have considered the overall circumstances of what Austcorp did and the information which it had at the time of making the representations. I am satisfied that Austcorp did not have reasonable grounds for making any of the representations as to future matters. As Sheppard and Neaves JJ indicated the inquiry is still directed to the representor's state of mind or to the existence of particular factors which would establish something as to the representor's reasonable grounds: Cummings 41 FCR at 566. 7. SALES ATTEMPTS BY THE APPLICANTS 7.1 Mr Owers' attempts to sell his apartment After the collapse of Mustara, Mr Owers decided to accept the recommendation of the owners corporation of the resort to lease his apartment to operators it had found including Mirvac and later the Oaks group. In early October 2003 Mr Owers approached Mr Bignold of Raine &amp; Horne at The Entrance to assist him in selling the property. Mr Bignold advised him that he was confident of achieving a sale at over $400,000 and would be working to achieve a price of around $450,000. Mr Owers signed an agency agreement shortly afterwards in which the agent's opinion as to the apartment's current estimated selling price was given as that range. However, when the property was put to auction before Christmas in 2003, it was passed at about $400,000 in with no registered bidders and no interest shown in it.
Case: Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd [1992] FCA 550 ; (1992) 38 FCR 471
Outcome: cited
Gould v Vaggelas (1984) 157 CLR 215 at 236 Wilson J identified four principles which are frequently used as a practical guide to assess the issue of whether a person has been induced to contract based on a misrepresentation (cf: Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 234 per Lockhart, Gummow and French JJ; Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd [1992] FCA 550 ; (1992) 38 FCR 471 at 482-483 per Beaumont, Foster and Hill JJ; Sutton v AJ Thompson Pty Ltd (1987) 73 ALR 233 at 240 per Forster, Woodward and Wilcox JJ), namely: "1. Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract."
Case: Fraser v NRMA Holdings Ltd (1995) 55 FCR 452
Outcome: discussed
Smith LJ dismissed the suggestion that the reference to the deposit of &#163;1,000 could be construed as a mere expression of confidence in the wares which the defendant had to sell: Carlill [1893] 1 QB at 273. And, as Black CJ, von Doussa and Cooper JJ said in Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 483E-G, the use of an expression such as "free" in connection with shares, depending on the context, can create a notion that the shares might be acquired without significant loss or outgoing, even though in other contexts in ordinary life people might understand similar usages differently. It depends on the context in which words are used as to whether or not their use is misleading or deceptive or likely to mislead or deceive.