DISTRICT COURT OF QUEENSLAND
CITATION: Banks & Ors v Copas Newnham P/L & Ors [2001] QDC 261 PARTIES: RODNEY ROY BANKS AND
JEANETTE ELLEN BANKS Plaintiffs
v
COPAS NEWNHAM PTY LTD
ACN 009 893 172 First Defendant
and
GRAHAM NEWNHAM Second Defendant
and
WONDERLEY AND HALL (A FIRM) Third DefendantFILE NO/S: 3792 of 2000 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Brisbane DELIVERED ON: 26 September 2001 DELIVERED AT: Brisbane HEARING DATES: 29-31August, 3 September 2001 JUDGE: Judge Robin QC ORDER: Plaintiff awarded $50,356 damages against all defendants Defendants adjudged liable to contribute equally CATCHWORDS: (Cth) Trade Practices Act 1974 s.51A, s.52, s.75B, s.82 – real estate agent liable in damages to purchaser of a home unit “off the plan” – references to guaranteed net rental return misleading and deceptive – no reasonable grounds to make them – there was no third party guarantee and the lessee appeared to be a company without resources - lessee only paid single instalment of rent – meaning of ‘guarantee’ considered – principal of real estate company held under accessorial liability – neither exonerated by purchaser’s seeking legal advice before signing contract – liability not avoided by agent’s disclaimer - contribution proceedings against purchaser’s solicitor.
Solicitor and client – solicitor retained with a view to attending to conveyancing under a contract yet to be signed but produced to the solicitor – duty of solicitor to advise that as subject property was to be encumbered by a long term lease, that the lessee’s capacity to pay rent should be investigated – contribution proceedings against vendor’s real estate agent.
(Cth) Trade Practices Act 1974
Fair Trading Act 1989Butcher v Harkins (2001) NSWSC 15 (2 May 2001)
Heiseler v Anglo-Dal Ltd [1954] 2 All ER 770
B.W. Bowler & Anor v Hilda Pty Ltd [1996] 928 FAC 1, (1998) 210 FCA, (1998) 80 FCR 191, (2000) FCA 899, (2001) FCA 342
H W Thompson Building Pty Ltd v Allen Properties Services Pty Ltd (1983) 48 ALR 667
Fox v Everingham (1983) 50 ALR 337
Twiddle v Bradley (1990) 2 Qd R 464
Hanflex Pty Ltd v. NS Hope & Associates (1990) 2 Qd R 218
Gardam v George Wills & Co Ltd (1988) 82 ALR 415
Burg Design Pty Ltd v Wolki [1999] FCA 388
Landel Pty Ltd v Redland Shire Council and Lipoma Pty Ltd (2001) QCA 120
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719
Menmel Pty Ltd v The Great Australian Bite Pty Ltd (1997) ATPR 41-553
Re La Rosa; ex parte Norgard v Rodpat Nominees Pty Ltd (1991) 104 ALR 237
Trade Practices Commission v Manfel Pty Ltd(In Liquidation) (1991) 105 ALR 520
Burke v LFOT Pty Ltd (2000) ATPR 41-781COUNSEL: Mr A. Maher for the plaintiff
Mr Hassett for the first and second defendants
Mr D.G. Clothier for the third defendantSOLICITORS: Quinn & Scattini for the plaintiff
David Prince & Associates for the first and second defendants
Brian…
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- Case
- [2001] QDC 261
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the real estate agent was liable for damages under the Trade Practices Act 1974 and if the agent's disclaimer could avoid liability. The court also needed to consider whether the purchaser's solicitor had a duty to advise on the lessee's capacity to pay rent and if the purchaser's seeking legal advice before signing the contract could exonerate the principal of the real estate company from liability. Furthermore, the court had to determine if contribution proceedings could be pursued against the purchaser’s solicitor.
The court found that the real estate agent was liable for misleading and deceptive conduct under the Trade Practices Act 1974, as the representations about the guaranteed net rental return were false and misleading. The court held that the agent's disclaimer did not avoid liability, and the principal of the real estate company was held under accessorial liability. The court also ruled that the purchaser's seeking legal advice did not exonerate the real estate agent from liability. Additionally, the court found that the purchaser's solicitor had a duty to advise on the lessee's capacity to pay rent, and contribution proceedings could be pursued against the purchaser’s solicitor. The court awarded the plaintiff $50,356 in damages against all defendants and adjudged them liable to contribute equally.
Orders
Orders of the court
Plaintiff awarded $50,356 damages against all defendants Defendants adjudged liable to contribute equally
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
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