Agius, v New World Oil & Developments Pty Ltd

[1988] FCA 230

Re: VINCENT AGIUS and HAYMOR 2 PTY LIMITED
And: NEW WORLD OIL AND DEVELOPMENTS PTY LIMITED; J.L.W (NSW) PTY LIMITED;
STEPHEN DOWNES; DAVID BRIGHT and KESTRAL PTY LIMITED
No. G278 of 1987
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Trade Practices - misleading or deceptive concerning the lease of a shop.

Trade Practices Act 1974 ss.51A, 52

HEARING

SYDNEY

#DATE 12:5:1988

Counsel for the Applicant: Mr N.F. Francey Mr P. Lever-Nalor

Solicitors for the Applicant: Snelgrove Mucsnik & O'Brien

Counsel for the 2nd,4th Respondents: Mr P.M. Biscoe

Counsel for the Appellant : Mr. V.A. Tallarida

Solicitors for the 2nd,4th Respondents: Moore & Bevins

Counsel for 1st,3rd,5th Respondents: Mr J.C. Kelly

Solicitors for 1st,3rd,5th Respondents: Simons & Baffsky

ORDER

The application be dismissed, with costs.

Note: Settlement and entry or orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These proceedings, which were brought in reliance on s.52 of the Trade Practices Act 1974 ("the Act") and on common law causes of action, were originally against five respondents. At the hearing, the proceedings against the second and fourth respondents were, by consent, dismissed, each party to pay his own costs. A cross-claim by them against the first respondent remains, which was for an indemnity to meet the situation of them being liable to the applicants, but all that remains is a question of costs, which by arrangement is to be dealt with at a later time. Their counsel was released from attendance. Counsel for the first, third and fifth respondents said at that time that he might wish to consider whether his clients should bring a cross-claim, as for an indemnity, against the parties thus dismissed, but after some debate counsel for the applicants stated that he did not intend to rely on any conduct of theirs to support his case, and those cross-claims have not been instituted. The matter proceeded on the issue of liability, the question of damages, if it arose, to be dealt with later.

1. The case is very much one of fact. Originally, the central question was whether before or at the time the applicants (who may be considered together, the second applicant being a trustee and Mr Agius being one of its directors) took a lease from the first respondent, of a shop in a shopping mall at Casula, the latter, through their agent, Mr Downes (the third respondent) represented that a particular business which has been called Peters Meats, and which was a butcher shop selling chickens as a sideline, was not opening a shop in the mall. The first respondent (which I will call "New World") owned the whole mall, which was a new building. Jones Lang Wootten (second respondent) was engaged in finding tenants and it employed Mr Bright (fourth respondent) as its Retail Manager-Leasing. Mr Downes, who was not an estate agent was at relevant times supervising the installations in the various shops and was "co-ordinating…