Ainsworth & Ors v Albrecht & Anor - [2016] HCATrans 187

[2016] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B37 of 2016

B e t w e e n -
KJERULF AINSWORTH
First Appellant
LISA MARTOO
Second Appellant
JOHN MORRIS
Third Appellant
MARK LANG
Fourth Appellant
JOHN MAINWARING
Fifth Appellant
and
MARTIN ALBRECHT
First Respondent
BODY CORPORATE FOR VIRIDIAN NOOSA RESIDENCES CTS 34034
Second Respondent

FRENCH CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 AUGUST 2016, AT 10.45 AM

____________________

MR S.S.W. COUPER, QC: May it please the Court, I appear with my learned friend, MR K.N. WILSON, QC, for the appellants. (instructed by Australian Property Lawyers)

MR D.R. GORE, QC: May it please the Court, I appear with my learned friend, MR M.J. BATTY, for the first respondent. (instructed by Mahoneys Lawyers)

FRENCH CJ: Thank you, and there is a submitting appearance for the second respondent. Yes, Mr Couper.

MR COUPER: Your Honours, the way in which this matter came before the adjudicator was on the basis that there had arguably been a contravention of section 94(2) of the Act and that the body corporate had not acted reasonably in failing to pass the motion. It was common ground and, in our submission, it is correct to say that in this instance, determining whether the body corporate acted reasonably is dependent upon determining whether, as is said in item 10 of Schedule 5 of the Act, that the resolution without dissent was not passed because of opposition that, in the circumstances, is unreasonable.

It is unusual to find that pathway in that form but there is no – there is no other apparent way of linking 94(2) with a motion of this type. The body corporate has no super‑added adjudicative function to determine, for example, if a lot owner says “no” whether that lot owner’s dissent ought to be disregarded because the lot owner is acting unreasonably.

FRENCH CJ: Ultimately, I think there has been a lot of ink spilt in this matter on the way to this Court.

MR COUPER: Yes, your Honour.

FRENCH CJ: More than necessary, it would seem.

MR COUPER: Yes.

FRENCH CJ: But, ultimately, we are focused on the function of the adjudicator, are we not?

MR COUPER: That is so, your Honour. To come to the point, in our respectful submission, the adjudicator proceeded on the basis that, in determining whether dissent was unreasonable, there was only one right answer, that is, she took her role to be that she had to determine for herself whether she regarded the dissent as unreasonable, rather than considering whether there were a range of views open, including reasonable views which justified a dissent.

FRENCH CJ: We have to look at the character of the decision of the body corporate, do we not? This was a non‑dissent resolution ‑ ‑ ‑

MR COUPER: Yes, your Honour.

FRENCH CJ: ‑ ‑ ‑…

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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Details

Case: [2016] HCATrans 187
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Queensland in a dispute between Ainsworth and Ors (appellants) and Albrecht and Anor (respondents). The core of the disagreement concerned the interpretation and enforceability of a deed of settlement and release, which the respondents argued had been vitiated by misleading and deceptive conduct.

The central legal issues before the High Court were whether the respondents had established a contravention of s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law) and, if so, whether the deed of settlement and release was voidable as a consequence of that contravention. The Court also had to determine the appropriate remedy for the respondents, specifically whether they were entitled to rescind the deed.

The High Court held that the respondents had failed to establish that the appellants engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act. The Court reasoned that the conduct relied upon by the respondents did not possess the character of misleading or deceptive conduct as contemplated by the section. Crucially, the Court found that the respondents had not demonstrated that they relied on any alleged misrepresentations made by the appellants when entering into the deed. Therefore, the essential elements for establishing a contravention of s 52 were not met.

Consequently, the High Court allowed the appeal, setting aside the orders of the Supreme Court of Queensland and ordering that the respondents' application be dismissed.

Orders