mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249
Outcome: cited
It is clear from considering this data in the context of preparing the 1 June 2004 Valuation Report that Mr Neubecker did not have detailed and exact information with respect to production. Rather, he presented what he perceived to be a careful estimate of expected yields for 2003/2004 as well as historical production figures for financial years (not Crop years as claimed by the applicants) based on the incomplete information before him which had been supplied by the first respondent. Similarly, by forwarding to Mr Tracy, as an interested potential purchaser, a copy of the 1 June 2004 Valuation Report with a view to providing an overview of the properties by an independent valuer, Mr Strahley and the first respondent were, at most, making a representation that the data in para 7.3 was a careful estimate of historical production figures and no higher. This did not somehow translate as claimed by the applicants into an unequivocal representation by either Mr Strahley or the first respondent that the data represented the unequivocally accurate position, which is the claim of the applicants. Given that the 1 June 2004 Valuation Report was provided by Mr Strahley (via Mr Douglas) to Mr Tracy, this is obviously not a case in that class where information is merely being passed on about property by an intermediary without any belief in its truth or falsity (cf John G Glass Real Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR 41-249) However to say that a potential vendor's provision of a report by a valuer containing highly qualified estimates of production constitutes, without more, an unequivocal adoption and confirmation of those estimates as fact is simply incorrect in the circumstances of this case. 4. Block summary data (exhibit R30)
Case: Johnson v Eastern Micro Electronics Pty Ltd (1986) 70 ALR 339
Outcome: cited
Whether or not the offer by Mr Tracy was a legally enforceable offer to purchase the relevant properties is an issue I need not decide. Further, the fact that an offer was made by Mr Tracy on 6 December 2004 was not conclusive misleading or deceptive conduct engaged in after entry in contractual relations may nonetheless contravene s 52 (cf Johnson v Eastern Micro Electronics Pty Ltd (1986) 70 ALR 339 at 352). However, that Mr Tracy made such an offer suggests that by 6 December 2004 he had decided to purchase the properties, and that he wished to expedite settlement of the transaction subject to his own due diligence. 582 Secondly, I consider the evidence demonstrates that Mr Tracy was determined to purchase the orchards notwithstanding that he had no experience of citrus or indeed of horticulture, and notwithstanding that he was repeatedly informed of issues affecting the potential profitability of the orchards, including: &#8226; the orchards had been unprofitable in previous years; &#8226; the orchards were in a geographical location which increased the risk of disease including EBS (as explained not only by the respondents but Mr Papacek and Mr Owen-Turner); &#8226; the orchards and the Packing Shed had historically required a considerable expenditure of money to enhance their performance, and bore considerable ongoing cultural costs; and &#8226; the performance of the orchards (as in the case of all horticulture) was clearly dependent on factors outside the control of the respondents including weather and disease. 583 Further, I consider it significant that Mr Bailey, the valuer engaged by Mr Tracy, valued the properties at the sum paid by Mr Tracy, and no higher . The applicants submitted that the valuation of Mr Bailey was derived using false data supplied by the first respondent, however: o I do not accept that submission. o Even on the premise advanced by the applicants that Mr Bailey relied on falsely inflated data, Mr Bailey still valued the properties at $4.5million; and o In any event, although Mr Tracy gave evidence that he was shocked by this seemingly low valuation (TS 322 ll 4, 445 ll 9 cf Tracy statement sworn 17 November 2006 at [78]), he proceeded to purchase the properties notwithstanding that "shock" because on his calculations the property would still show a return of capital and because he felt that the "canker scare was over". I consider it likely that Mr Tracy simply did not believe Mr Bailey's valuation, and preferred to rely on his own judgment as to the future value of the relevant properties.
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: cited
Where it would reasonably have been expected that a party would adduce particular evidence but does not do so, adverse inferences may be drawn from the failure of the party to adduce that evidence: Jones v Dunkel (1959) 101 CLR 298. However I accept the submission of the respondents that: &#8226; The applicants were aware seven days prior to the commencement of the trial that the respondents did not intend to call Mr Breed, as the respondents were required to give the applicants notice of the witnesses they intended to call. &#8226; The applicants could have relied on their subpoena and required Mr Breed's attendance; and &#8226; The respondents approached Mr Breed to obtain an affidavit from Mr Breed in response to allegations in Mr Breed's unsigned statement filed in these proceedings, which allegations were put through Mr Green as the basis of that witness' assumptions.
Case: Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49
Outcome: cited
In relation to these representations the respondents submitted, inter alia , that no such representations as alleged were made by the forecasts, and that in relation to the budgetary forecasts they could not be expected to materialise precisely. The respondents refer particularly to comments of Connolly J in Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49 at 59: This complaint is really characteristic of the particulars of alleged inaccuracy generally. What is really being said in relation to each of the heads of complaint is that the plaintiff spent more than was projected....Of course projections of this character, being estimates, cannot be expected to materialise precisely. 283 In relation to this submission I consider that: &#8226; Even if it is accepted that the predictions of the respondents were forecasts which could not be expected to materialise precisely, the claim of the applicants in relation to the future representations was not that the budgets had not materialised precisely but, in summary, that the relevant representations of the first respondent were misleading or deceptive and that the first respondent did not have reasonable grounds upon which to make them. &#8226; Putting to one side for the moment the issues raised by s 51A in relation to future representations, if the forecasts were misleading or deceptive in a non-material sense they could still be misleading or deceptive for the purposes of s 52. The fact that they did not materialise precisely would be an issue going to causation and remedies rather than the central issue of whether the conduct was, as a matter of factual determination, misleading (cf discussion in Miller at [1.52.25]). &#8226; The essence of s 51A is that it recognises that representations as to future matters may be misleading, including documents in the nature of budgetary forecasts. 284 Accordingly, I do not find this submission of the respondents helpful in considering the claims of the applicants with respect to these particular future representations.
Case: Lam v Ausintel Investments Australia Pty Ltd (1990) 97 FLR 458
Outcome: cited
The transaction involving the sale of the relevant properties followed commercial arms-length negotiations. As pointed out in Lam v Ausintel Investments Australia Pty Ltd (1990) 97 FLR 458 at 475, simply because one party has knowledge which the other does not, does not in itself impose an obligation on the first party to bring the information to the attention of the other party. This is only the case if there is an obligation of full disclosure. 219 Notwithstanding this, the applicants submitted that, in the context of a potential purchaser known by the respondents to have no citrus experience, it was incumbent on the respondents to disclose their knowledge of Mr Burns' decision to resign to Mr Tracy. Mr Tracy gave evidence that he was told in the last week of February 2005 by Mr Breed that Mr Burns had resigned, and specifically deposed that (Tracy statement sworn 17 November 2006): 110. ... The presence of Burns was an important consideration in my decision to go ahead with the sale transaction. This was because I had no technical experience in horticulture and was relying on Burns for this expertise... 111. After learning of Burns' resignation I telephoned Matthew Burns at his home which was on the Bundaberg orchard. I spoke to Burns and attempted to convince him to stay on however Burns was adamant. During this conversation Burns told me that he had informed Sunstate Orchards of his intention to resign months earlier. I told Burns that this was the first time that I had been informed of his intention to resign. I was greatly concerned that Burns' intention to resign had been concealed from me throughout the sale process. 220 In my view there is no evidence to support the existence of any obligation of the respondents to inform the applicants of any knowledge concerning Mr Burns' possible future resignation, so that a failure to do so was conduct which mislead or deceived or was likely to mislead or deceive the applicants.
Case: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136
Outcome: cited
It has been suggested that, because the deeming within the meaning of s 51A(2) takes effect unless the corporation adduces some evidence to the contrary, this does not mean that the onus of proof (which otherwise lies with the applicant) is reversed, but merely requires the corporation to go into evidence ( ACCC v Universal Sports Challenge Ltd [2002] FCA 1276 at [46] ). The weight of authority however is that the person making the representation can only avoid the deeming in s 51A(2) by establishing on the usual balance of probabilities that there were reasonable grounds for making the representation: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136 at [82] , Ting [1993] FCA 524 ; 118 ALR 543 at 552, Bowler v Hilda Pty Ltd (1998) 153 ALR 95 at 108 and 117, Sykes 88 FCR 511 at 513-514, Adelaide Petroleum NL &amp; Ors v Poseidon Limited &amp; Ors (1988) 10 ATPR 40-901 at 49,700, Phoenix Court Pty Ltd (1997) ATPR 46-179 (and cf other cases in support of this proposition listed at Miller , 29th ed para 1.51A.37).
Case: Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599
Outcome: cited
There is no doubt that historical performance can be a factor relevant to the reasonableness of a forecast of future performance (see, for example, ACCC v Top Snack Foods Pty Ltd [1999] FCA 752 , ACCC v Telstra Corporation Ltd [2007] 244 ALR 470). However in determining whether a person had reasonable grounds for expressing an opinion or making a prediction as to a future matter, is necessary to judge the matter as at the date of the representation (see Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 at 625, Sykes 88 FCR 511 at 513, City of Botany Council [2001] NSWCA 94 at [83] ). Historical performance is one factor, although it is an important factor. In paras 19(e) and (f) the applicants claim that the respondents had in their possession Packing Shed data computer records which disclosed the matters referred to in paras 19(a), (b) and (c). I have already considered the claims in paras 19(a), (b) and (c) and found that the respondents had reason to distrust the information in the Packing Shed records to which the applicants refer. Further, I do not consider that the applicants have substantiated the "true position" with respect to, inter alia , the Packing Shed records as claimed by the applicants in paras 19(d)-(g). I shall return to this issue later in my judgment.
Case: McMahon v Pomeray Pty Ltd [1991] FCA 289
Outcome: cited
However, where it appears that the applicant had knowledge of the true facts by the time it allegedly acted on the impugned conduct, it is clearly much more difficult for the applicant to demonstrate reliance on such conduct: cf Rumpe v Camrol Pty Ltd [1985] FCA 5 , McMahon v Pomeray Pty Ltd [1991] FCA 289. Similarly, where the applicant makes its own inquiries or retained its own advisers to ascertain the true position there is some authority that reliance on the impugned conduct is negated: cf The Australian William E Simon Graduate School of Business Administration Incorporated v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1994) 51 FCR 243.
Case: MGICA (1992) Ltd v Kenny &amp; Good Pty Ltd (1996) 140 ALR 313 at 358
Outcome: cited
Further, it is not fatal to a claim of reliance that the applicant does not give express and direct evidence of reliance : see analysis of Lindgren J in MGICA (1992) Ltd v Kenny &amp; Good Pty Ltd (1996) 140 ALR 313 at 358 and observations of the Full Court in Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 245-246.
Case: Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82
Outcome: cited
The failure of an expert assessing the reasonableness of predictions as to primary production to visit the properties would, as a general proposition, be an issue relevant to the value of the resultant expert report, although it would not necessarily render the opinion irrelevant and inadmissible (cf Mount Lawley Pty Ltd v Western Australian Planning Commission [2006] WASC 82). In this case I accept the submission of the respondents as to the futility of attendance at the orchards by Mr Frick in circumstances where the orchards had not been maintained for a year. Evidence was given by Mr Harrison, who inspected the property in June 2006, that in June 2006. The health of the trees was obviously very poor. The rows were overgrown, the trees were still have fruit on from the year before from the season before. The watering regime had not been maintained. There was just a slow well, a an obvious lack of management throughout the orchard. (TS 1275 ll 36-40) 310 And later during the hearing: Well, the condition of the trees, as I assumed in the February '05, compared to what I saw in June '06, June '06 the trees were not able to be salvaged, and it was treated as agricultural land. (TS 1276 ll 13-16) 311 This evidence was not challenged by the applicants.
Case: National Australia Bank Ltd v Cunningham [1990] FCA 310
Outcome: cited
It is clear that the contravening conduct need not be the sole inducement in sustaining the loss ( Gould v Vaggelas [1985] HCA 85 ; (1985) 157 CLR 215 ; National Australia Bank Ltd v Cunningham [1990] FCA 310 at [6] , Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99 ; (1993) 41 FCR 229 at 233, Elitegold Pty Limited v CM Holdings Pty Ltd , Australia Fair Shopping Centres Pty Limited and CM Developments (Qld) Pty Ltd [1995] FCA 1336 at [49] ) although it is necessary that the contravening conduct had a substantial rather than a negligible effect ( Como Investments Pty Ltd (in liq) v Yenald Nominees Pty Ltd (1997) 19 ATPR 41 550 at 43,619; McHugh J in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 494).
Case: Neowarra v Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208
Outcome: cited
It is clear from cases decided under the Evidence Act that the "basis" rule does not feature in s 79. Strictly speaking, it is not necessary for an expert opinion to be admissible for the factual basis of the opinion to be itself proven by admissible evidence ( Neowarra v Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208 at [22] and [37], Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10] , Bodney v Bennell [2008] FCAFC 63 at [90] ). Instead, provided the expert evidence: &#8226; is opinion evidence which satisfies s 79 ; and &#8226; is relevant within the meaning of s 55(1). as a general rule it is admissible under s 56(1) , and the general discretion of the Court to refuse to admit evidence under s 135 is sufficient to deal with problems that might arise in respect of the opinion the basis of which is not disclosed ( Quick 87 FCR 371 per Branson J at 617, Emmett J agreeing; Bodney [2008] FCAFC 63 at [91] ).
Case: Notaras v Hugh [2003] NSWSC 167
Outcome: cited
I note that even if I had considered that the probative value of Mr Frick's expert report was not outweighed by the prejudice to the applicants within the meaning of s 135 , I would have ruled that it be given no weight. The weight to be accorded to an expert opinion depends to a significant degree upon the factual basis for such an opinion (cf for example Ramsay v Watson [1961] HCA 65 ; [1961] 108 CLR 642 at 649, Branson J in Quick 87 FCR 371 at 621, Notaras v Hugh [2003] NSWSC 167 at [20] ). I have already discussed in detail the difficulties associated with the lack of identification of sources, and what appears to be the intertwining of information from those sources with the specialised knowledge of Mr Frick in producing his report. Given the facts that: &#8226; a significant factual basis of Mr Frick's opinions was unidentified persons contacted specifically for the purpose of obtaining information upon which to base his opinions, which sources cannot be tested in any way; and &#8226; importantly, the extent to which Mr Frick's opinions were based on these sources compared with his own specialised knowledge (or, in relation to yield, the DPI publication) was unclear from his report the inevitable result in my view was that the report could be accorded no weight even if admitted.
Case: Quick v Stoland Pty Ltd (1998) 87 FCR 371
Outcome: cited
It is clear from cases decided under the Evidence Act that the "basis" rule does not feature in s 79. Strictly speaking, it is not necessary for an expert opinion to be admissible for the factual basis of the opinion to be itself proven by admissible evidence ( Neowarra v Western Australia [2003] FCA 1399 ; (2003) 134 FCR 208 at [22] and [37], Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373-374, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [10] , Bodney v Bennell [2008] FCAFC 63 at [90] ). Instead, provided the expert evidence: &#8226; is opinion evidence which satisfies s 79 ; and &#8226; is relevant within the meaning of s 55(1). as a general rule it is admissible under s 56(1) , and the general discretion of the Court to refuse to admit evidence under s 135 is sufficient to deal with problems that might arise in respect of the opinion the basis of which is not disclosed ( Quick 87 FCR 371 per Branson J at 617, Emmett J agreeing; Bodney [2008] FCAFC 63 at [91] ). 331 Branson J in Quick v Stoland explained in detail the legislative rationale for this position, and Lindgren J in Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 summarised in detail the historical background including the Australian Law Reform Commission's Interim Report on Evidence (ALRC No 26, 1985). It is unnecessary to repeat the reasoning of their Honours here. 338 If the Court were to admit Mr Frick's expert report, the next issue is the weight to be ascribed to it because of the absence of identification of sources on which Mr Frick based his opinion (cf Branson J in Quick 87 FCR 371 at 621, Sydneywide Distributors Pty Ltd [2002] FCAFC 157 at [16] and [87]). 354 I note that even if I had considered that the probative value of Mr Frick's expert report was not outweighed by the prejudice to the applicants within the meaning of s 135 , I would have ruled that it be given no weight. The weight to be accorded to an expert opinion depends to a significant degree upon the factual basis for such an opinion (cf for example Ramsay v Watson [1961] HCA 65 ; [1961] 108 CLR 642 at 649, Branson J in Quick 87 FCR 371 at 621, Notaras v Hugh [2003] NSWSC 167 at [20] ). I have already discussed in detail the difficulties associated with the lack of identification of sources, and what appears to be the intertwining of information from those sources with the specialised knowledge of Mr Frick in producing his report. Given the facts that: &#8226; a significant factual basis of Mr Frick's opinions was unidentified persons contacted specifically for the purpose of obtaining information upon which to base his opinions, which sources cannot be tested in any way; and &#8226; importantly, the extent to which Mr Frick's opinions were based on these sources compared with his own specialised knowledge (or, in relation to yield, the DPI publication) was unclear from his report the inevitable result in my view was that the report could be accorded no weight even if admitted.
Case: Ramsay v Watson [1961] HCA 65 ; [1961] 108 CLR 642
Outcome: considered
I note that even if I had considered that the probative value of Mr Frick's expert report was not outweighed by the prejudice to the applicants within the meaning of s 135 , I would have ruled that it be given no weight. The weight to be accorded to an expert opinion depends to a significant degree upon the factual basis for such an opinion (cf for example Ramsay v Watson [1961] HCA 65 ; [1961] 108 CLR 642 at 649, Branson J in Quick 87 FCR 371 at 621, Notaras v Hugh [2003] NSWSC 167 at [20] ). I have already discussed in detail the difficulties associated with the lack of identification of sources, and what appears to be the intertwining of information from those sources with the specialised knowledge of Mr Frick in producing his report. Given the facts that: &#8226; a significant factual basis of Mr Frick's opinions was unidentified persons contacted specifically for the purpose of obtaining information upon which to base his opinions, which sources cannot be tested in any way; and &#8226; importantly, the extent to which Mr Frick's opinions were based on these sources compared with his own specialised knowledge (or, in relation to yield, the DPI publication) was unclear from his report the inevitable result in my view was that the report could be accorded no weight even if admitted.
Case: Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477
Outcome: cited
Silence may be relied upon in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 557 and see the useful discussion in Miller's Annotated Trade Practices Act (29th ed) 1.52.53). If the circumstances do give rise to such an obligation, the next question is whether the relevant silence constituted conduct which was misleading or deceptive or likely to mislead or deceive ( Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489, 504, 508). The duty to disclose is not confined to cases where there are particular relationships, such as trustee and beneficiary or solicitor and client ( Henjo Investments Pty Ltd [1988] FCA 40 ; 39 FCR 546 at 557). However the applicant bears the onus of establishing how or in what manner that which was left unsaid had the potential to mislead or deceive. To have that potential, omissions in communicating information must be relevant to the topic about which it is said a respondent's conduct is likely to mislead or deceive and material in the circumstances ( Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 467-468).