Ackers v Austcorp International Ltd [2009] FCA 432
CORRIGENDUM
GRANT ANTHONY ACKERS v AUSTCORP INTERNATIONAL LTD
NSD 1460 of 2006
RARES J 1 MAY 2009 (CORRIGENDUM 20 APRIL 2010) SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1460 of 2006
BETWEEN:
GRANT ANTHONY ACKERS First Applicant
PAUL JOSEPH BERGER Fifth Applicant
MARIE ESTEBAN Fifteenth Applicant
STEVE GOUGANOVSKI Twenty First Applicant
KARY PTY LTD Twenty Fourth Applicant
JESS PATRICK LUSTRI Twenty Seventy Applicant
BRIAN STEPHEN OWERS Thirty First Applicant
ANTHONY PAPACOSTANTINOU Thirty Second Applicant
SHIRLEY SHEPHERD Thirty Eighth Applicant
JOHN STARTARI Fortieth Applicant
ANGELA STARTARI Forty First Applicant
SEAR TAN-BOUNKEUA Forty Second Applicant
ARGYRO THIMIOPOULOS Forth Third Applicant
SHARON JOY ACKERS Forty Ninth Applicant
SIMONE MAREE BERGER Fiftieth Applicant
ANTONIA NICOLAU Fifty Fifth Applicant
NICHOLAS PARIS Fifty Sixth Applicant
RITA GOUGANOVSKI Sixtieth Applicant
TALDARMAR HOLDINGS PTY LTD Sixty Third Applicant
RAFFAELA LUSTRI Sixty Fourth Applicant
VICKI VAMVALELLIS Sixty Fifth Applicant
STAN VAMVALELLIS Sixty Sixth Applicant
DESPINA VAMVELELLIS Sixty Seventh Applicant
APHRODITE THIMIOPOULOS Seventy First Applicant
AND:
AUSTCORP INTERNATIONAL LTD Fifth Respondent
JUDGE:
RARES J
DATE OF ORDER:
1 MAY 2009
WHERE MADE:
SYDNEY
CORRIGENDUM
1.On page 66, par 183, second last line, change the word “given” to read “give an”.
2.On page 120, par 367, fourth line, change the word “experts” to read “expert”.
I certify that the preceding two (2) numbered paragraphs is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Rares.
Associate:
Dated: 20 April 2010
FEDERAL COURT OF AUSTRALIA
Ackers v Austcorp International Ltd
[2009] FCA 432
TRADE AND COMMERCE –– CAUSATION –– s 52 Trade Practices Act 1974 (Cth) –– misleading or deceptive conduct –– misleading conduct in relation to purchase of investment property –– unequivocal representations by promoter of real property investment contained in glossy promotional brochure and leaflet –– promoter not the vendor of land –– fine print of contract for sale of land conflicted materially with representations made in promotional material –– contract contained entire agreement clause and clause acknowledging no reliance by applicant on any representations –– whether contractual clauses corrected, or relieved promoter from liability for, misleading representations –– whether promoter can rely on terms of contract to which it not party – whether promoter can rely on possibility or likelihood that a representee’s solicitor will explain contract so as to correct fully the misleading representations –– where promotional material calculated to interest prospective investors to enter contract to purchase by omitting material matter contained in fine print in contract –– whether misleading conduct caused applicant to enter the contract
TRADE AND COMMERCE –– CORPORATIONS –– corporate groups –– where holding company and subsidiary involved in the same conduct or transaction –– where only group’s logo used in promotional material to identify promoter –– where holding company officers employed by it but also act as agents of subsidiary –– where holding company publicly states that it is the project promoter, writes correspondence on its letterhead,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ackers v Austcorp International Ltd [2009] FCA 432
Case
[2009] FCA 432
Decision Date
CaseChat Overview and Summary
Ackers v Austcorp International Ltd involved a dispute over compensation for property buyers who were misled by false representations regarding the value of their investments. The case was heard and decided in an Australian court. The primary legal issues revolved around whether the buyers were entitled to relief and, if so, the appropriate form and amount of compensation for their losses.
The court was required to determine the validity of the buyers' claims, whether they had indeed suffered losses due to misrepresentations, and the correct method for calculating any compensation owed. Specifically, the court needed to assess the difference between the purchase price and the true value of the apartments, any additional agreed losses before tax, and interest on these amounts from the relevant dates. The court also had to consider the claims of other buyers who were not part of the current proceedings.
In its reasoning, the court concluded that certain applicants were entitled to relief while others were not. For those entitled to compensation, the court outlined a specific method for calculating the amount due, which involved determining the difference between the purchase price and the true value, adding any agreed net loss before tax, and then calculating interest on these totals from the relevant dates. The court directed the parties to prepare draft orders reflecting these findings and scheduled a future hearing to finalize the orders and address any unresolved claims.
Orders
Orders of the court
1. On or before 8 May 2009 the parties file agreed short draft minutes of the orders which they propose be made to give effect to these reasons and, in default of agreement, draft short minutes of the orders which each party proposes for that purpose.
2. The proceedings stand over to 8 May 2009 at 9:30am.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
RARES J
The applicants raised a suggestion in a footnote to their submissions that they were entitled to compound interest on a basis and in a sum that was not made clear. The argument was not explored orally. It is not clear to me whether, and if so how, it is pressed. I will leave the parties to address issues about interest and the form of final relief after they have considered these reasons.11. CONCLUSION In my opinion Mr Owers and Ms Tan-Bounkeua have established that they are entitled to relief, while Mr Luciani and Taldarmar have not. The appropriate way to compensate the successful applicants for their loss is as follows:(1)Calculate the difference between the purchase price and the true value of the apartment.(2)Add the agreed net loss before tax (and in Mr Owers’ case the interest on $20,000).(3)Calculate interest from the relevant dates of the loss on the totals of each of (1) and (2). I will direct the parties to bring in short minutes of the appropriate orders necessary to give effect to these reasons. Some provision will need to be made to deal with the still unresolved outstanding claims of other applicants with whose claims I have not yet dealt.