mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gardam v George Wills &amp; Co [1988] FCA 194 ; (1988) 82 ALR 415
Outcome: cited
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.
Case: General Newspapers Pty Limited v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164
Outcome: discussed
despite the care and deliberation with which it was prepared, Austcorp submitted that the brochure was marketing material that contained a degree of puffery in the sense that Davies and Einfeld JJ had explained in General Newspapers Pty Limited v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 178; Gummow J agreeing at 194. They said that in the ordinary course of commercial dealings, "... a certain degree of 'puffing' or exaggeration is to be expected. Indeed, puffery is part of the ordinary stuff of commerce". A puff is something that is not meant to be taken seriously or acted on: see also Downey [2005] QCA 199 at [92] per Keane JA.
Case: Global Sportsman Pty Limited v Mirror Newspapers Limited [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: cited
I am satisfied that it would be unreasonable to read the brochure as offering an assurance against anything that might happen in the market, the use of an apparently reputable hotel operator's name, Pacific International Hotels, in connection with the promise of a 7% p.a. return for 10 years from the investment was calculated to induce confidence that the promoters of the venture had a foundation for the confidence expressed concerning future matters. Those who were named in the brochure as organisations, rather than particular identified corporate identities, included the hotel operator, as "Pacific International", and a developer, "Austcorp". Ordinarily, a statement which involves the state of mind of the maker will convey the meaning expressly, or by implication, that the maker of the statement had a particular state of mind when it was made and, commonly, that there was a basis for that state of mind: Global Sportsman Pty Limited v Mirror Newspapers Limited [1984] FCA 180 ; (1984) 2 FCR 82 at 88 per Bowen CJ, Lockhart and Fitzgerald JJ; RAIA Insurance Brokers Limited v FAI General Insurance Co Limited [1993] FCA 92 ; (1993) 41 FCR 164 at 172-175 per Beaumont and Spender JJ, with whom Davies J generally agreed at 165-166.
Case: Gould v Vaggelas (1984) 157 CLR 215
Outcome: applied
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: H O Brandt &amp; Co v H N Morris &amp; Co [1917] 2 KB 784
Outcome: cited
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: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121
Outcome: cited
was the guiding hand and ultimately benefited from what its subsidiaries did. It argued that its conduct vis a vis its subsidiaries should be viewed as akin to a real estate agent who passes on the vendor's instructions. I reject that argument. Austcorp did not confine itself to communicating what its subsidiary said, did or represented, without adopting or endorsing it: cf: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at 605 [38] - [40] per Gleeson CJ, Hayne and Heydon JJ. To the contrary, the reality was that the subsidiaries were Austcorp's vehicle for realising its investment in the project. The subsidiaries acted as Austcorp caused them to act. While each of Austcorp and its subsidiaries was a separate legal person, acting through the individuals who were employees of Austcorp, all acted in dual capacities: cf: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121 at 128 per Mason CJ, Wilson and Toohey JJ. The activities of each member of the Austcorp group involved in the development and marketing of the resort were interlocking and Austcorp controlled each of them: cf: NSW Mutual Real Estate Fund Ltd v Brookhouse [1979] FCA 7 ; (1978) 38 FLR 257 at 263 per Franki J, 264 per St John J, 266 per Deane J. After all, a fundamental purpose of the Parliament prescribing the norm of conduct enacted in s 52 of the Act is to ensure the protection of the public, particularly consumers. I reject Austcorp's argument that it did not engage in the conduct of providing to the applicants the brochure, leaflet and their repetitions by Mr Walker. Austcorp was the hands and brains of its subsidiaries' conduct and Austcorp cannot evade responsibility for any contravention of s 52 by seeking to draw down between itself and them a corporate veil for the contraventions it perpetrated: cf: Hamilton 166 CLR at 128; Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 88 [108] .
Case: Henderson v Amadio Pty Limited (No 1) (1995) 62 FCR 1
Outcome: cited
Owers had continued to incur the expenses in order to hold the asset that he acquired "by" the misleading conduct for which Austcorp is liable. He expended money because of the position in which he had been placed by Austcorp's contravention of s 52 of the Act. Although Mr Owers has achieved a small net taxation saving over a number of years that has come at the expense of his being involved in an investment which he would not otherwise have pursued. I am of opinion that it is not appropriate to require Mr Owers to use his own money to pay the cost of financing a venture he would not have undertaken had he not been misled by Austcorp's contraventions of the Act: see also Henderson v Amadio Pty Limited (No 1) (1995) 62 FCR 1 at 200A-D per Heerey J. He has lost the opportunity of using the $48,837 paid by him for which he claimed tax deductions and received a net benefit, in other ways. He is entitled to damages in the whole sum claimed, without making allowance for taxation benefits. (b) Mr Owers $33,000 cash deposit Mr Owers said that he would have invested in another long term income producing property had he not been induced to purchase the apartment. I accept that evidence. Instead of borrowing the whole of the purchase price, he used initially $33,000 of his cash savings to pay the deposit. Ultimately, he borrowed $31,000 from his bank and paid about $10,000 of that to pay back into his other bank account. Thus, he borrowed about $31,000 of the $330,000 price, and claimed damages for the loss of opportunity to invest the balance of either $20,000 or $30,000 in a better investment. Originally, Mr Owers sought damages for loss of a chance to obtain a better investment outcome from a possible purchase of investment property in Lithgow for this sum. But in the applicants' written submissions in reply, Mr Owers abandoned that argument and sought compensation such as simple interest on that sum. He does not now claim any substantive damages for the loss of the opportunity to invest beyond the amount which Austcorp agreed he should be allowed as interest on the net capital sum he invested from his own savings. Austcorp conceded in final address that if he were entitled to recover damages, some sum in the nature of interest should be awarded on the $20,000 to $30,000 figure.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
82(1) of the Act permits recovery by an applicant for loss or damage notwithstanding his, her or its failure to mitigate or contributory negligence unless the applicant's own carelessness or disregard of his, her or its interests is the cause of some or all of the loss or damage: Munchies Management Pty Ltd v Belperio (1988) 58 FCR 274 at 286G-287C per Fisher, Gummow and Lee JJ applying what French J had said in Pavich v Boira Nominees Pty Ltd [1988] ANZ Conv R 556 at p 23; see too Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 517B-E per Heerey J, Sundberg J agreeing at 521F. The misrepresentations were a link in the causal chain between Mr Owers' entry into the transaction and his loss: cf: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 469 [14] per Gleeson CJ. At best, from Austcorp's perspective, there may have been two concurrent causes of the imprudent decisions of Mr Owers and Ms Tan-Bounkeua to buy their apartments and lease them to Mustara. Austcorp's conduct was one of the causes, the other being those applicants' failure to receive legal advice exposing to them the effect of cl 20.9. 3.1 THE APPLICANTS 3.1.1 BRIAN OWERS
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: cited
the two experts gave evidence about a range of rates. Neither explained in detail exactly how he arrived at his conclusion, yet each looked at a number of properties and had years of experience in forming such views. In that context is their evidence, though imperfect in the legally technical sense, worthless? The best expert in a field may not be able to give a textbook explanation of the basis for his or her opinion; does the Court discard it as worthless evidence? A reasoning process provides transparency as to how the conclusion has been revealed. Often a tribunal of fact will say that a witness was not satisfactory or reliable. That conveys a conclusion based on an overall assessment of the person as seen and heard. Yet a fully transparent reassessing process for the conclusion is not always possible because, in part, it may depend on the values, perceptions and prejudices of the fact finder, some known by that person, some not. Courts recognise this in the way discretionary judgments are treated on appeal: House v The King [1936] HCA 40 ; (1936) 55 CLR 499. I have been conscious that the two experts have not given enough reasoning to enable me to dissect or analyse which end of the range is more likely to be correct. On the other hand, I am satisfied that the market for apartments in the resort between 1999 and 2004 was not operating in a fully informed manner and that the prices paid then did not reflect the true value of the asset. And I am satisfied that the more recent 2006 to early 2008 sales were reflective of the, then, current true values. (There was no suggestion that conditions in the Australian or world economies were deteriorating at this time or otherwise having an impact on these values of the disportion they reveal as against movements in value in the area around the resort.) That is, I am satisfied the influences which distorted the market earlier for apartments in the resort were no longer operative at the time of the more recent sales in evidence. Mr Tew's approach had a number of flaws which were exposed by his attempt to assess comparable properties outside the resort. He chose properties as his comparable sales in established four star holiday destinations, such as Nelson Bay, when they were not reasonably comparable. His principal choices were two resort apartments in the Landmark at Nelson Bay. However, unlike The Entrance as Mr Tew was aware, in 2000 Nelson Bay had both about four or five established 4 star resorts together with a reputation for that class of accommodation and appropriate local restaurants for such a market. He said that he gave consideration to the income streams of the two Landmark apartments (104 and 117) he used as comparators for the two larger apartments of Mr Owers and Luciani/Taldarmar. But, he said that he did not refer to their income streams in his reports because he used the direct comparison method. At the hearing, he said these two apartments "... are the two most reliable" for his comparable sales analysis. Mr Tew agreed that a sample of two was not ideal to use as basis for a comparable sales analysis.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
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: Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35
Outcome: discussed
Wardley 175 CLR at 527 Mason CJ, Dawson, Gaudron and McHugh JJ explained the distinction between detriment, in a general sense, and damage suffered on entry into an agreement induced by a misrepresentation which is, or proves to be, to an applicant's disadvantage. The applicant will sustain a detriment in a general sense because the agreement subjects him, her or it to obligations and liabilities which exceed the value or worth of the benefits which it conferred on that person. But such a detriment will not necessarily amount to more than a contingency of future loss. In general, it is only when the contingency is fulfilled that an applicant will be found to have suffered loss or damage sufficient to infringe his, her or its economic interests for the purposes of an action under s 82(1): Wardley 175 CLR at 533. It is self-evident that the applicants would not have been able to sue for damages in respect of the losses they claim here before they completed or were legally bound to complete their contracts. Risk of loss is not actual loss. The mere entry into the contract did not, of itself, require each applicant to complete it since that obligation would only arise, or be able to be enforced by or against the applicant, once the strata plan was registered: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at 407-409 [46] - [54] . In Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 at 43C-D Burchett and Hill JJ (Sackville J agreed at 45C; see too at 48E) held that where a lessee had been induced by the lessor's misrepresentations as to takings into entering into a lease, the question for limitation purposes was " ... when was it that the loss which the [applicants] ultimately suffered (or a more than negligible part of it ) was either ascertained by them or reasonably ascertainable? "
Case: Lewis v Daily Telegraph Limited [1964] AC 234
Outcome: referred to
all, the intended market for this investment were people holidaying at The Entrance who were attracted to walk into PRD's office at the site, as each of the applicants here did. These applicants were ordinary members of the public, not professional landlords or real estate investors or developers. They were the very class of persons who were intended to be attracted by the brochure viz: namely the kind of investor who would be looking for a return in something which it was hard to imagine could be offered at that level. In another context, to do with the law of defamation, Lord Devlin once observed tellingly in Lewis v Daily Telegraph Limited [1964] AC 234 at 285 (and see also Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 304 per Brennan J): "A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that ." (emphasis added) Just as the ascertainment of whether a particular representation was made to a representee, or any other issue concerning the meaning of words, the task of evaluating whether s 51A(1) applies to a representation requires the Court to ascertain the meaning conveyed by the words in the context. There can be no prescriptive rule that any particular form of expression must be, or not be, a representation with respect to a future matter: cf: Lewis [1964] AC at 285 per Lord Devlin. And, for the purposes of evaluating the issues arising under s 51A , in a case like the present, the understanding of each applicant is crucial. First, the representation objectively must be capable of being characterised as made with respect to a future matter. Secondly, the applicant must have understood it in that way. Thirdly, if the applicant did understand the representation to be with respect to a future matter, he, she or it will need to establish that, understood, in that way, he, she or it suffered loss of damage "by" the contravening conduct under s 82. Section 51A recognises that representations with respect to a future matter can be objectively misleading or deceptive if the prediction turns out in due course to be wrong. If s 52 operated in that unqualified way, because of the consequence of future error it would create liability for every representation about future matters, however responsibly the representation may have been made at the time. So, s 51A ordinarily affords a representor an important protection in making such a wrong prediction if, when making it, the representor had reasonable grounds for doing so.
Case: Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111
Outcome: cited
Tew chose significantly larger apartments in a different market with different amenities (including the neighbouring golf course) with which to make his comparisons, even though there was no apparent justification for doing so. He made no allowance in his valuation as at 2000 for actual and pending competing development at The Entrance. I am not prepared to accept his evidence as being reliable: see Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 at 121 [18] per McHugh, Gummow, Kirby, Hayne and Callinan JJ. I consider that it indicates that Mr Tew did not select appropriately the properties which he used to arrive at or support his valuations. His approach did not identify properties that reasonably assist in indicating values of a comparable kind to those in the resort. In addition, because the apartments in the resort were purchased for the, or a, purpose of earning investment returns, I am of opinion that Mr Dupont's approach is generally to be preferred. Austcorp criticised Mr Dupont's methodology in his valuation according to known factors. It argued that the method produced a different value depending on when the exercise was done and that he had arbitrarily selected an unspecified date in 2007 and an unreasoned sale price for the purposes of preparing this valuation. I think there is force in these criticisms. Mr Dupont made a calculation of the 2007 net present value of cash flows from each applicant's apartment. But he said that in order to assess the apartments' values based on events that became known after their purchases, it was necessary to take into account both the actual income they guaranteed from 2001 to 2007 and the apartment's "potential value at today's date". Those potential values were, in the case of Mr Owers $300,000 (as compared to a $330,000 purchase price in 2000), Luciani/Taldarmar $310,000 (as compared to a purchase price of $340,000 in 2000) and $190,000 for Ms Tan-Bounkeua (the same as her purchase price in 2000). His valuation was made in March 2008. Mr Dupont gave no basis explaining how he arrived at those potential values for three properties on this assumed basis. Mr Dupont's failure to set out in full his reasoning process for selecting the potential values which he put into his value according to known factors calculation undermined the alternative methodology he adopted. I am not satisfied that this was an appropriately explained or reasoned methodology and I reject it.