Re: PHILIP NATHAN ARGY and JANE ELIZABETH ARGY And: BLUNTS AND LANE COVE REAL ESTATE PTY LIMITED (trading as BLUNTS OF LANE COVE); P.M. BOWEN AND ORS (trading as GADENS RIDGEWAY) and RAYMOND GORDON CROOKS No. G623 of 1989 FED No. 57 Trade Practices - Conveyancing (1990) para 41-015/94 ALR 719/26 FCR 112
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Hill J.(1)
CATCHWORDS
Trade Practices - Whether misrepresentations in brochure and advertisement issued by first respondent misleading or deceptive conduct or conduct likely to mislead or deceive - whether representation that certificate annexed to various contracts was complete certificate under s.149 Environmental Planning and Assessment Act misleading or deceptive conduct or conduct likely to mislead or deceive - whether conduct of third respondent "in trade or commerce" - meaning of the expression "in trade or commerce" - whether loss or damage suffered by applicant arose out of misleading or deceptive conduct by respondent - discussion of class of persons protected by s.52 of Trade Practices Act.
Trade Practices - Rescission - doctrine of election - whether or not applicants elected to affirm contract and lost right to rescind - conduct necessary to amount to election as between two inconsistent rights of affirmation and rescission - discussion of principles.
Conveyancing - Vendor under contract for sale of land deemed under s.52A(2)(b) Conveyancing Act (NSW) to have included prescribed warranties in contract - breach by respondent vendor of statutory warranty - failure to make full disclosure of matters affecting zoning - rights of parties to contract to rescind.
Trade Practices - Measure of damages under Trade Practices Act: where right to rescind contract exists - where contract affirmed and rescission unavailable - calculation of damages where payment under contract of sale not made immediately but payable over period of time without interest - principles discussed.
Counsel and Solicitors Mr R J Ellicott QC and Mr for Applicants: R Webb instructed by Messrs
Mallesons Stephen Jaques
Counsel and Solicitors Mr N C Hutley instructed by for First Respondent: Messrs Murray Stewart and Fogarty
Counsel and Solicitors Mr L G Foster instructed by for Second Respondents: Messrs Ebsworth and Ebsworth
Counsel and Solicitors Mr R Anderson of Messrs Lane for Third Respondent: and Lane
ORDER
The applicants by notice in writing elect whether or not to affirm the contract, such notice to be filed on or before Thursday 8 March 1990 with a copy to be served on or before that date on the Respondents.
Note: Settlement and entry of orders dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The first applicant, Philip Nathan Argy is a partner in one of the largest law firms in Sydney practising in the areas of trade practices, technology and associated litigation work. By his own admission…
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
AGLC
Argy v Blunts & Lane Cove Real Estate Pty Ltd [1990] No. G623 of 1989 FED No. 57 57
Case
[1990] FCA 57
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Argy brought proceedings against Blunts and Lane Cove Real Estate, contending that representations in a real estate brochure and advertisement, issued by the latter, constituted misleading or deceptive conduct under the Trade Practices Act. The crux of the dispute was whether the statements made in these materials and a certificate attached to various contracts were accurate and complete. The plaintiffs further argued that such conduct fell within the ambit of "trade or commerce" as defined in the Trade Practices Act and that they had suffered loss or damage arising from this alleged misconduct.
The court was tasked with determining whether the representations in the brochure and advertisement, as well as the certificate, were indeed misleading or deceptive. It was necessary to assess whether the conduct of Lane Cove Real Estate could be classified as "in trade or commerce" and whether the plaintiffs' loss or damage could be directly linked to the alleged misleading conduct by the defendants. Additionally, the court considered the scope of protection provided by section 52 of the Trade Practices Act.
The court found that the representations in the brochure and advertisement, along with the incomplete certificate, were indeed misleading or deceptive conduct within the meaning of the Trade Practices Act. The conduct of Lane Cove Real Estate was deemed to be "in trade or commerce," and it was established that the plaintiffs had suffered loss or damage as a result of this conduct. Consequently, the court ruled in favour of the plaintiffs, acknowledging the wide scope of protection offered by section 52 of the Trade Practices Act. The applicants were granted the option to affirm or rescind the contract, with a specified timeline for their decision.
Orders
Orders of the court
The applicants by notice in writing elect whether or not to affirm the contract, such notice to be filed on or before Thursday 8 March 1990 with a copy to be served on or before that date on the Respondents.
Note: Settlement and entry of orders dealt with in Order 36 of the Federal Court Rules.