JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ADAMS -v- PRICE [2021] WADC 130
CORAM: LEVY DCJ
HEARD: 17, 18 & 19 MARCH, 31 MAY & 6 AUGUST 2021
DELIVERED : 22 DECEMBER 2021
FILE NO/S: CIV 2390 of 2018
BETWEEN: DAVID NIGEL ADAMS
Plaintiff
AND
GERAINT LEWIS AND HAZEL JUNE PRICE
First Defendants
SIMON MILLS
Second Defendant
CENTURION REAL ESTATE PTY LTD
Third Defendant
SALLY ANNE KINNER
Fourth Defendant
Catchwords:
Trade practices - Misleading or deceptive conduct - Whether alleged misrepresentation made in the course of 'trade or commerce'
Tort - Whether alleged representation made - Whether first defendants liable for representation made by their agent - Whether misrepresentation false or made recklessly - Whether representation amounted to a negligent misstatement
Contract - Whether term of agreement precluded plaintiff from relying upon pre‑contractual misrepresentation allegedly made by first defendants
Evidence - Whether principle in Jones v Dunkel should be applied
Practice and procedure - Whether a default judgment made against one defendant in the proceedings can be relied upon by the plaintiff in proceedings against another defendant in the same proceedings - Whether plaintiff should be permitted to re-open his case after evidence completed
Damages - Assessment of damages
Legislation:
Building Act 2011 (WA), s 3, s 9
Building Regulations 2012 (WA)
Competition and Consumer Act 2010 (Cth), sch 2, s 18, s 84
District Court Rules 2005 (WA), r 47F(3) and r 47F(4)
Evidence Act 1906 (WA), s 79C
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374
Local Government Act 1995 (WA), s 9.38, s 9.39 and s 9.41
Rules of the Supreme Court 1971 (WA), O 20 r 14(1)
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
| Plaintiff | : | Mr W G Vogt |
| First Defendants | : | Mr N van Hattem |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | In person |
Solicitors:
| Plaintiff | : | Vogt Graham Lawyers |
| First Defendants | : | MGB Legal |
| Second Defendant | : | Not applicable |
| Third Defendant | : | Not applicable |
| Fourth Defendant | : | Not applicable |
Case(s) referred to in decision(s):
ABN Amro Bank NV v Bathurst Regional Council (2014) 224 FCR 1
AGC Industries Pty Ltd -v- Karara Mining Ltd [2019] WASC 140
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14; (2009) 83 ALJR 951; (2009) 239 CLR 175
Argy v Blunts & Lane Cove Real Estate Pty Ltd [1990] FCA 51; (1990) 26 FCR 112
Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brookfield Multiplex v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26
Commercial Banking Co of Sydney Ltd v R…
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- AGLC
- Adams v Price [2021] WADC 130
- Case
- [2021] WADC 130
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the representations made by the defendants, or their agent, were misleading or deceptive, and if so, whether these representations were made in the course of trade or commerce. The Court also considered whether a duty of care existed between the parties, and if the plaintiff had relied on any negligent statements. Another issue was whether the term of an agreement precluded the plaintiff from relying on any pre-contractual misrepresentation. The Court further examined whether the principle in Jones v Dunkel should be applied and if a default judgment against one defendant could be relied upon against another defendant in the same proceedings. The Court also had to determine whether the plaintiff should be allowed to re-open his case after evidence was completed, and how to assess the damages.
The Court found that the defendants did not make any misrepresentations, nor did they owe a duty of care to the plaintiff. It was held that for a claim of negligent misstatement to succeed, the plaintiff must prove that a relevant duty of care was owed, the representation was made in serious circumstances with the intention that it would be relied upon, and the plaintiff relied on the representation. The Court determined that there was no duty of care owed by the defendants to the plaintiff, and therefore, the claim for negligent misstatement failed. The Court also ruled that the plaintiff was not permitted to re-open his case after evidence was completed, and the damages were assessed accordingly.
The Court dismissed Mr. Adams' claims against all defendants and ordered that each party bear their own costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In this case, for Mr Adams to succeed in a claim for negligent misstatement, he must also prove to the requisite standard that:(a)The representation was made by Mr and Mrs price (alleged to have been made through their agent Mr Mills).(b)That a relevant duty of care was owed to him by Mr and Mrs Price (by their agent) at the time of the making the representation by Mr Mills. If no duty of care exists, then Mr Adams would fail to make good a claim in negligent misstatement negligence.[163](c)That the representation was made in serious circumstances,[164] with an intention that it would be relied upon and that the maker of the representation (Mr Mills) was aware, or ought reasonably be aware that the recipient (Mr Adams) would rely upon the information or advice.[165] (d)That Mr Adams relied upon the representation. That is, the representation must have had a causative effect upon his decision-making process (in this case to purchase the property).[163] Brookfield Multiplex v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185 [19]. [164] Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465.[165] Mutual Life & Citizens' Assurance Co Ltd v Evatt (1968) 122 CLR 556, 571 (Barwick CJ). Whilst 'reliance' is the test for determining whether the relationship between parties calls a duty of care into existence, the test is whether there is reasonable reliance, rather than actual reliance. Barwick CJ in Mutual Life & Citizens' Assurance Co Ltd noted:[166]… the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker. The nature of the subject matter, the occasion of the interchange, and the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment will all be included in the factors which will determine the reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the speaker.[166] Mutual Life & Citizens' Assurance Co Ltd (571) (Barwick CJ). Gaudron J, in Tepko Pty Ltd v Water Board,[167] in discussing negligent misstatement, noted that:… 'the circumstances which attract a duty of care have been identified as 'known reliance (or dependence) or the assumption of responsibility or a combination of the two.' In that context, the word 'known' includes circumstances in which reliance or dependence ought to be known. Moreover, it is not essential that the person making the statement know the precise use to which the information will be put, so long as he or she knows or ought to know that it will be used for a serious purpose.[167] Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 [74]. Thus, the question of whether a duty of care existed between Mr Adams and Mr and Mrs Price (through their agent Mr Mills) needs to be considered in light of the relationship between the parties. The circumstances must be such that it is reasonable in all the circumstances for the recipient of the representation to rely upon it.[168][168] In ABN Amro Bank NV v Bathurst Regional Council (2014) 224 FCR 1 [573] - [575] (Jacobson, Gilmour & Gordon JJ).