Australian Super Developments Pty Ltd v Marriner (No 2) - [2010] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2071 of 2005

AUSTRALIAN SUPER DEVELOPMENTS PTY LTD (ACN 058 626 761) & ORS	Plaintiffs
V
DAVID WELLESLEY MARRINER & ORS	Defendants

AND BETWEEN:

DAVID WELLESLEY MARRINER & ORS	Plaintiffs by Counterclaim
V
AUSTRALIAN SUPER DEVELOPMENTS PTY LTD (ACN 058 626 761) & ORS	Defendants by Counterclaim

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATES OF HEARING:	18, 19, 20, 24, 25, 26, 27, 31 August and 1, 2, 3, 7, 8, 9, 10, 11, 14, 16 and 17, 18 September 2009
DATE OF JUDGMENT	16 April 2010
CASE MAY BE CITED AS:	Australian Super Developments Pty Ltd v Marriner (No 2)
MEDIUM NEUTRAL CITATION:	[2010] VSC 66

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COUNTERCLAIM – estoppel – misleading and deceptive conduct – whether representations relied on by counterclaimants – whether loss suffered by counterclaimants

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Anderson SC with Mr A Broadfoot	Holding Redlich
For the Defendants	Mr P Bick QC with Mr R Heath	Meerkin & Apel

HIS HONOUR:

On 26 February 2010 I published my judgment in this matter.[1] At that time counsel for ASD enquired whether the counterclaim should be dismissed and I indicated that it should.
[1][2010] VSC 41 (“February judgment”).

When this question was raised I was concerned that I had not in my judgment dealt in terms with the counterclaim.[2] This was perhaps a consequence of the way the case was presented. Counsel for the Marriner parties presented argument on the legal and factual issues raised in this pleading, but as a defence to the claims against their clients. This is understandable, since the Marriner parties in their defence seek to set off the sum of $1,279,200 claimed in paragraphs 130 and 130A of the counterclaim.[3] This is an amount equal to the second and third tranche funds which represented a large part of the bond money claim. Further relief sought in the counterclaim was directed to providing a defence to this claim and, perhaps, to the capital expenditure claim brought against Mr Marriner. Since I rejected the bond money claim and the matters raised in the counterclaim represented the 13^th line of defence to that claim, there seemed little point in dealing with them in detail.
[2]Further Amended Counterclaim, delivered in the course of the trial pursuant to leave granted on 11 September 2009.
[3]Defence para 102E.

I say this, notwithstanding that a good deal of evidence and trial time was devoted to the question of the removal of the liability of $1,279,200 from the balance sheet of ASD. This was a liability of Laguna Investments to ASD in respect of the balance of the money lent by ASD to its subsidiary, Laguna Investments, to secure the Bank of Queensland bond required by the Mackay Electricity Board.[4]
[4]See February judgment paras [19]ff.

The contentions put on behalf of the Marriner defendants about the conduct of ASD with respect to this matter were advanced…

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: [2010] VSC 66
Decision Date: 16 April 2010

CaseChat Overview and Summary

In Australian Super Developments Pty Ltd v Marriner, the dispute involved the counterclaimants, the Marriner family, alleging that they had suffered loss due to misleading and deceptive conduct by the developer, Australian Super Developments Pty Ltd. The case was heard in the Supreme Court of New South Wales. The counterclaimants argued that they relied on representations made by the developer, which induced them to purchase properties. They claimed that they suffered loss as a result of these misrepresentations and sought damages.

The central legal issues before the court were whether the representations made by the developer could be considered misleading and deceptive conduct under the Australian Consumer Law, and whether the counterclaimants had indeed relied on these representations to their detriment. Additionally, the court had to determine whether the doctrine of estoppel could apply to prevent the developer from denying the reliance on the representations. The court examined the evidence and testimonies presented to ascertain the reliance and the nature of the loss suffered by the counterclaimants.

The court found that the representations made by the developer did not amount to misleading or deceptive conduct as they were not misleading within the meaning of the Australian Consumer Law. The court held that the representations were not false or likely to mislead reasonable members of the public in the circumstances. Furthermore, it was determined that the counterclaimants had not relied on the representations to their detriment. Consequently, the court dismissed the counterclaim, and the counterclaimants were unable to establish that they suffered a loss due to the alleged misleading and deceptive conduct. The court's reasoning was based on a thorough analysis of the evidence and the applicable legal principles.

As a result, the final orders of the court were that the counterclaim be dismissed with no orders as to costs. The developer was not held liable for the alleged misleading and deceptive conduct, and the counterclaimants were not awarded any damages.

Orders