mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202 ; (1999) 47 NSWLR 1
Outcome: discussed
In Ta Ho Ma Pty Ltd v Allen [1999] NSWCA 202 ; (1999) 47 NSWLR 1 Giles JA said at [17]: So a valuer who puts out a negligent valuation does not incur an open ended liability to any and every financier who relies on it, even if it was reasonably foreseeable that the financier would rely on it. The particular financier may be outside the class of person to whom the valuer owes a duty to take care in making the statement in the valuation, in the same manner as Esanda was outside the class of persons to whom the auditors owed a duty of care on the case as pleaded in Esanda Finance Corporation Ltd v Peat Marwick Hungerfords [1997] HCA 8 ; (1997) 188 CLR 241; the auditors owed a duty of care to the members of Excel, but not to Esanda. 341 In Ta Ho Ma an owner of property obtained a valuation from the defendant. Some 81/2 months later the owner telephoned a solicitor (apparently not the owner's own solicitor) seeking a loan and advising of the valuation. The solicitor in turn contacted the plaintiff who advanced a loan on the basis of the defendant's valuation which by this time was 91/2 months old. The Court of Appeal held that the defendant owed no duty of care to the plaintiff because, having regard to the age of the valuation, there could be no expectation of reasonable reliance by the plaintiff: see per Handley JA at [12]-[14], per Giles JA at [18], [24], [28], per Sheppard AJA at [105]. 342 The case is certainly not authority for any proposition that a valuer only owes a duty of care to the client who directly retains him or her. If that were the law, there would have been a short answer to the plaintiff's claim since the chain went from valuer defendant to owner to solicitor to lender plaintiff. On the facts, as Handley JA noted at [6], it was not a case where the valuer contemplated that a class of persons might rely on his valuation. Giles JA at [24] pointed out that where a valuer puts out a negligent valuation the class of persons to whom to whom the duty of care ...will normally be confined, apart from any other considerations, to those persons whom the valuer knows or ought to know will reasonably rely on the valuation. [Emphasis in original] In other words, given expectation of reasonable reliance, there can be a duty owed by a valuer to a class of persons. The identification of that class will obviously depend on the circumstances. 343 Perre , a decision of the High Court handed down shortly after Ta Ho Ma , demonstrates the flexibility and pragmatism of the law of negligence in identifying the class of persons to whom a duty of care is owed in a particular case and the absence of any bright line rule: see per Gleeson CJ at [7]. It was held that the defendant, which brought infected seed potatoes on to a farm in South Australia, owed a duty of care to growers within 20 kilometres of the farm because such persons would be prevented by Western Australian law from exporting potatoes to that State. The plaintiffs "were members of a class whose members, whether numerous or not, were ascertainable by (the defendant)": per McHugh J at [50].
Case: BT Australia Ltd v Raine &amp; Horne Pty Ltd [1983] 3 NSWLR 221
Outcome: applied
A disclaimer in almost identical terms was relied on by a valuer defendant in BT Australia Ltd v Raine &amp; Horne Pty Ltd [1983] 3 NSWLR 221. The first plaintiff (BT) was the trustee of a property trust, the second plaintiff was the custodian trustee of assets of superannuation funds of which BT was manager, and the third plaintiffs were the trustees of various superannuation funds which had invested in the trust. Wootten J at 236 held that the first part of the disclaimer impliedly accepts responsibility for the use of the valuations by BT, but not for its use for any other purpose. The second part disclaimed responsibility to any third party. The second part was to be read as not disclaiming responsibility for damage to a third party by the very use of the valuation by BT for which the valuer in the first part of the clause impliedly accepted responsibility. 349 His Honour noted that the disclaimer clause was unilaterally framed and inserted by the valuer, and if it was intended to disclaim responsibility for the consequences of its use for the very purpose for which it was obtained it was reasonable to expect the valuer to say so in clear words. 350 I think the same conclusion is to be reached in the present case. Also, by a slightly different route it can be said that, construing the clause contra proferentem , "the party to whom it is addressed" comprehends Boyds and also its clients, given the circumstance that, as already discussed, the obvious inference is that the firm is acting on behalf of clients. 351 As to the misleading and deceptive conduct claim ([35]-[38] above) it was submitted that Mr Mantach simply stated what he had done and what he had been told: he had scaled off the map and the owner had instructed him that the area of land used for cropping purposes was 82 ha. His statements of value were expressions of opinion. Valuation, it was said, is an art not a science.
Case: Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249
Outcome: cited
However, what Mr Mantach said in the valuations as to croppable area was a matter of "hard physical fact"; see John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249 at 41,359 cited with implicit approval by the High Court in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [65] . John G Glass dealt with a misrepresentation by a vendor's agent as to net lettable area of a commercial building, something obviously analogous to croppable area of a rural property.
Case: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592
Outcome: cited
However, what Mr Mantach said in the valuations as to croppable area was a matter of "hard physical fact"; see John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249 at 41,359 cited with implicit approval by the High Court in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [65] . John G Glass dealt with a misrepresentation by a vendor's agent as to net lettable area of a commercial building, something obviously analogous to croppable area of a rural property.
Case: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860 ; (2002) 120 FCR 191
Outcome: cited
An expression of opinion as to value may constitute misleading and deceptive conduct if the valuer does not in fact genuinely hold the opinion in question (not suggested in the present case) or (as is submitted) there is not some proper foundation for it: Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860 ; (2002) 120 FCR 191 at [124] .
Case: MGICA (1992) Ltd v Kenny &amp; Good Pty Ltd (1996) 140 ALR 313
Outcome: followed
In MGICA (1992) Ltd v Kenny &amp; Good Pty Ltd (1996) 140 ALR 313 at 356 ( Kenny at first instance) Lindgren J held that a valuation report in that case conveyed representations not only that the opinions expressed in them were held but also (a) that the opinions were based on reasonable grounds, (b) were the product of the exercise of due care and skill and (c), after making due allowance for their nature as opinions as to the market value of real estate at a particular time, safe to be relied upon and not outside the range of latitude properly to be allowed to them. The same can be said of the Mantach valuations in the present case.
Case: Baxter v F W Gapp Co Ltd [1939] 2 KB 271
Outcome: followed
The valuations of Mr Austin, which I accept, and even Mr Cripps, establish that there was here a gross overvaluation, which in itself is evidence of negligence: Baxter v F W Gapp Co Ltd [1939] 2 KB 271 at 277, Kenny (at first instance) at 335-337. This is confirmed by what happened when the properties were put up for sale in 2004: [139]-150] above. There were also identifiable errors, especially in the assessment of the croppable areas, but also in the use of some of the comparable sales and the inherently unreliable "catch-all" approach.
Case: Wardley and King v Yurisich [2006] FCAFC 136 ; (2006) 153 FCR 78
Outcome: cited
In June 2004 Mr Medwin submitted a marketing proposal to Mr MacDonald. It stated that Broadmoor had "40 hectares of pine [ sic ] cropping land in a sort [sic] after area" and that at Lower Wilmot "52 hectares is prime cropping land". The proposal gave estimated prices of $600,000 to $650,000 for Broadmoor and $420,000 to $460,000 for Lower Wilmot. 146 The proposal recommended sale by auction with advertising over a five week period in specified Tasmanian newspapers and internet display. In his evidence Mr Medwin defended the length of the advertising campaign, saying the longer you give purchasers, the more likely they are to procrastinate. Intensive and short advertising campaigns are more likely to attract the market. 147 On 19 June 2004 Mr Medwin received an email from Mr Youl in which Mr Youl calculated the "total cropping area" for Broadmoor as approximately 40 hectares plus probably 5 to 7 hectares taken up with the dam gully, existing dam chemical storage area sheds and access roads, the balance of the 122.43 hectares being existing forest and a small mix of potential cropping land now planted with trees by FEA with the remaining steeper land not suitable for cropping now also planted out with trees. Mr Youl calculated the total cropping area for Lower Wilmot as approximately 60 hectares with the balance of 147.05 hectares taken up with existing forest and non-cropping ground now committed to trees planted by FEA, existing dam areas, ground storage areas, chemical wash down area with evaporation pit, overhead tank and access roads. 367 However, the provision applies only to causes of action that arise on or after the day on which Sch 3 to the amending Act commenced, which was 26 July 2004. Here the cause of action arose in August 2001 when the purchases were completed and the applicant, in exchange for money, acquired properties worth substantially less than their true value. At that moment the applicant suffered actual loss, not just the possibility of future loss, however likely. The case is therefore different from cases of contingent loss such as Wardley and King v Yurisich [2006] FCAFC 136 ; (2006) 153 FCR 78 at [67] . 368 In respect of the claims under ss 14 and 17 (1)(b) of the Fair Trading Act 1990 (Tas), the reduction provision in s 4 of the Wrongs Act 1954 (Tas) would apply. However, if the applicant has a non-reducible claim under the Trade Practices Act , this would have no practical effect. 369 In any case, I see no factual basis for a finding of contributory negligence. As counsel for the applicant fairly put it, his client was firmly in the hands of vendors who were dishonest and professional advisors (ie Mantach) who were negligent. There was nothing to put them on notice as to these dangers. In the resale or attempted resale of the properties, the applicant acted reasonably. It retained Mr Medwin, a very experienced and reputable local agent. The marketing program was, for the reasons explained by Mr Medwin, reasonable and appropriate for properties of this kind [146-150] above.
Case: Burke v LFOT Pty Ltd [2002] HCA 17 ; (2002) 209 CLR 282
Outcome: applied
Apportionment between a misleading and deceptive vendor and a negligent professional advisor of a purchaser was the subject of the High Court's decision in Burke v LFOT Pty Ltd [2002] HCA 17 ; (2002) 209 CLR 282. The vendor of a commercial property had made misleading and deceptive representations to a purchaser concerning the reliability and solvency of a tenant of the property. The purchaser was awarded damages of $750,000 being the difference between the price and the true value of the property at the time of purchase. The vendor sought contribution from the purchaser's solicitor who was found to be negligent in not advising the purchaser to inquire about the financial standing of the tenant. The trial judge held that the vendor was entitled to 50 per cent contribution from the solicitor. A majority of the Full Court upheld this order but it was set aside by a majority of the High Court: Gaudron A-CJ, McHugh, Hayne and Callinan JJ, Kirby J dissenting.
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The principles to be applied in dealing with an application such as the present are laid down in D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 9 In my opinion the learned Magistrate's decision is not attended with sufficient doubt to warrant its reconsideration by this Court. The decision was not made in chambers. It was made following an oral hearing in open Court on 23 May 2006. Reasons were provided. 10 Accordingly, the application for leave to appeal is dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 14 November 2006 Counsel for the Applicant: No Appearance Counsel for the Respondent: Ms F Kerr Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 November 2006 Date of Judgment: 14 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1575.html
Case: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368 ; (1995) 58 FCR 26
Outcome: followed
discussed this question of the required state of mind of the inducer in a case of inducing breach of contract in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368 ; (1995) 58 FCR 26 ( Allstate ) at 43 (in a judgment with which Lockhart and Tamberlin JJ agreed). Malice, in the sense of spite or ill will, is not an element of that tort: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [114] ; cf Northern Territory of Australia v Mengel (1995) 185 CLR 307 ( Mengel ) at 341-342.
Case: Bruce v Odhams Press, Limited [1936] 1 KB 697
Outcome: cited
leading authority for that proposition is the judgment of Scott LJ in Bruce v Odhams Press, Limited [1936] 1 KB 697. His Lordship described the difference between a statement of material facts and particulars in the following terms (at 711): [A] radical distinction, and none the less so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is zone of doubt which we call dusk. His Lordship said (at 712) that a statement of the material facts is a statement of the facts necessary to constitute a complete cause of action. He said that "particulars" are not to be used in order to fill material gaps in a statement of claim. His Lordship said (at 712-713): The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a "material fact" and a "particular" piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them. Bruce v Odhams Press, Limited was a defamation case. The defendant company had published a newspaper article which referred to certain aeroplane smuggling exploits of "an Englishwoman". By her statement of claim, the plaintiff merely asserted that these words were meant and were understood to mean her. This was held to be failure to plead material facts. It was necessary for the plaintiff to plead extrinsic facts on which she would rely to link the words "an Englishwoman" to herself. In H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd , above, Northrop J, following Scott LJ in Bruce v Odhams Press, Limited , rejected (at 187) an argument that the particulars to a paragraph of a statement of claim should be treated as a statement of material facts for the purposes of the Federal Court Rules .
Case: H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181 ; 40 FLR 242
Outcome: cited
respondents cite H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181 ; 40 FLR 242 and Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 for the proposition that the material facts must be stated in the text of a pleading, not in "particulars". In H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd , above, Northrop J, following Scott LJ in Bruce v Odhams Press, Limited , rejected (at 187) an argument that the particulars to a paragraph of a statement of claim should be treated as a statement of material facts for the purposes of the Federal Court Rules .
Case: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157
Outcome: cited
present case is not one of the Commonwealth officers' having induced Rotary or Mr Whittaker or both to decide to breach contracts giving rise to a secondary liability of the Commonwealth to the other contracting parties. Yet counsel for the applicants cited Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 , a case of inducement of a breach of contract. If it is anything, the present case is one of direct interference by unlawful means with the performance by Rotary and Mr Whittaker of the respective contracts.
Case: Lumley v Gye (1853) 2 El &amp; Bl 216 (118 ER 749)
Outcome: cited
is, however, a more fundamental question which was also not raised on the hearing. This is whether the action lies for the benefit of Mr Whittaker and Rotary at all. The action for inducement of breach of contract does not lie for the benefit of the contract breaker. It lies only for the benefit of the other contracting party. Much of the debate on the hearing treated the claim as a species of inducement of breach of contract of the Lumley v Gye (1853) 2 El &amp; Bl 216 (118 ER 749) kind, yet this point was not raised. Is the position different when the claim is for direct interference with contractual relations by unlawful means? It may well be. On the other hand, the argument is open that it is no different, and that the applicants' remedy includes a claim for their economic loss in the damages they seek to recover for some other tort, such as, false imprisonment. In conclusion, the "Heads of Loss and Damage" document filed by the applicants on 24 April 2008 showed that the allegation is not that the supply contract was breached, but that additional costs were incurred by the applicants in connection with its performance. Again, on the hearing it seems to have been assumed by both counsel that the applicants' claim was that the Commonwealth, through its officers, had prevented performance of the contracts. Paragraphs 8 and 9 will be struck out with leave to replead. The most careful consideration will need to be given as to what cause of action, if any, can properly be pleaded in their place. If claims are to be pursued for direct interference with contractual relations by unlawful means, they must be separately pleaded in respect of each applicant and each of the three contracts. Interference with trade paragraph 10
Case: Northern Territory of Australia v Mengel (1995) 185 CLR 307
Outcome: cited
discussed this question of the required state of mind of the inducer in a case of inducing breach of contract in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368 ; (1995) 58 FCR 26 ( Allstate ) at 43 (in a judgment with which Lockhart and Tamberlin JJ agreed). Malice, in the sense of spite or ill will, is not an element of that tort: Zhu v Treasurer of the State of New South Wales [2004] HCA 56 ; (2004) 218 CLR 530 at [114] ; cf Northern Territory of Australia v Mengel (1995) 185 CLR 307 ( Mengel ) at 341-342. A tort of interference with trade or business interests by unlawful means, as distinct from interference with contractual relations, has not yet been recognised by the High Court, although neither has it been rejected. In Mengel at 343 and Sanders v Snell [1998] HCA 64 ; (1998) 196 CLR 329 at [35] - [40] , it was referred to as an embryonic or emerging tort. For the purposes of the present motion, I proceed on the assumption that it forms part of Australian law.
Case: OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2008] 1 AC 1
Outcome: discussed
in OBG Ltd v Allan; Douglas v Hello! Ltd (No 3); Mainstream Properties Ltd v Young [2008] 1 AC 1 ( OBG ) the members of the House of Lords had occasion to consider in detail the elements of the torts of "inducing a breach of contract" and "interference with contractual relations by unlawful means". The former is a secondary liability, the primary liability being that of the contract breaker. The latter is a primary liability alone. Because the matter was not debated before me, I simply refer the parties, especially the applicants, to the discussion of the elements of the tort of direct interference with contractual relations by unlawful means in OBG . In particular, they will need to consider (a) the unlawful means element, and (b) the element of the required state of mind of the respondents in the case of that species of tortious conduct, as distinct from the required state of mind in the case of inducing a breach of contract.
Case: Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union of Australia (1987) 89 FLR 349
Outcome: cited
the two bases of liability to which I have referred have often not been distinguished. Direct physical prevention of contractual performance by unlawful means has been treated as a species of inducing a breach of contract. See, for example, Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers' Union of Australia (1987) 89 FLR 349 at 350-1. In Trindade, Cane and Lunney, The Law of Torts in Australia (4 th ed, OUP, 2007), the authors give as an example of the procurement of a breach of contract, a defendant's physically detaining a contracting party or depriving him of his tools, so that he cannot perform a contract with the plaintiff (at [6.6.2.2] p 307). See, too, John Murphy, Street on Torts (12 th ed, OUP, 2007) at 368-369; and The Laws of Australia (Lawbook Co., subscription service) 33 Torts at [8.1140]. It will be necessary for the pleading to be amended in order to conform, not with the notion of inducing or procuring a breach of contract, but with that of direct inference by unlawful means with the performance of a contract.