Banks v Copas Newnham P/L - [2002] QCA 217

SUPREME COURT OF QUEENSLAND

CITATION:

Banks & Anor v Copas Newnham P/L & Ors [2002] QCA 217

PARTIES:

RODNEY ROY BANKS & JEANETTE ELLEN BANKS
(plaintiffs/first respondents)
v
COPAS NEWNHAM PTY LIMITED ACN 009 893 172
(first defendant/second appellant)
GRAHAM NEWNHAM
(second defendant/first appellant)
WONDERLEY AND HALL (A FIRM)
(third defendant/second respondent)

FILE NO/S:

Appeal No 9434 of 2001
DC No 3792 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2002 and 22 May 2002

JUDGES:

McMurdo P, McPherson JA, and Mackenzie J
Separate reasons for judgment of each member of the Court each concurring as to the orders made.

ORDERS:

(1) Appeal dismissed with costs; (2) Cross-appeal dismissed with costs.

CATCHWORDS:

TRADE & COMMERCE - TRADE PRACTICES AND RELATED MATTERS - CONSUMER PROTECTION - MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT - PARTICULAR CLASSES OF CONDUCT - REAL ESTATE TRANSACTIONS - representations made by selling agent with no suggestion the information conveyed contained opinions of others - whether sales agent considered mere ‘messenger’

TRADE & COMMERCE - TRADE PRACTICES AND RELATED MATTERS - CONSUMER PROTECTION - MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT - CHARACTER AND ATTRIBUTES OF CONDUCT - EXCLUSION CLAUSES AND DISCLAIMERS - disclaimers misleading and legally unenforceable - whether defendants can be thereby relieved of liability for misleading representations

TRADE & COMMERCE - TRADE PRACTICES AND RELATED MATTERS - ENFORCEMENT & REMEDIES - PENALTIES - PECUNIARY PENALTIES: QUANTUM AND LIKE MATTERS - value of property dropped because representations were misleading - whether quantum assessed by reference to sales occurring after contract date acceptable

INTEREST - RATE OF INTEREST AND COMPOUND INTEREST - RATE IN OTHER CASES - trial judge awarded interest at rate above the statutory rate - whether within judicial discretion to reduce interest to statutory rate.

TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - purchaser received negligent advice from solicitor - whether can be considered contributory negligence by plaintiff

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF THE WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - OFFER OF COMPROMISE MADE - plaintiff makes offer to settle - third defendant invites first and second defendants to join in settlement - invitation rejected - whether judge acted reasonably in assessing standard costs where offer was rejected

Fair Trading Act 1989 (Qld), s 6(3) Trade Practices Act 1974 (Cth), s 51A, s 51A(1), a 51A(2), s 52, s 52A(3), s 75B(a), s 75B(c), s 75B(1)(c) Uniform Civil Procedure Rules, r 360(1), r 363

Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719, 743, referred to Brown v Harkins [2001] NSWSC 15, distinguished Brown v Raphael [1958] Ch 637, referred to Gould v Vaggelas (1985) 157 CLR 215, 220-221, 266, applied John G Glass Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR §41-249, referred…

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: [2002] QCA 217
Decision Date: 21 June 2002

CaseChat Overview and Summary

The appeal was brought by the plaintiff against the defendants in relation to a property transaction. The dispute centred on allegations of misleading and deceptive conduct by the defendants in their capacity as real estate agents. The case was heard in the Supreme Court of Queensland. The court was required to determine several legal issues, including whether the defendants could be held liable for the representations made by their selling agent, the enforceability of disclaimers in such circumstances, and the appropriate assessment of pecuniary penalties. Additionally, the court needed to consider the impact of contributory negligence on the part of the plaintiff and the reasonableness of costs awarded in the proceedings.

The court examined the nature of the representations made by the selling agent and whether they could be considered mere transmissions of information without any personal opinion. It concluded that the agents could not escape liability by claiming to be mere messengers. Regarding the disclaimers, the court found them to be misleading and legally unenforceable, thus not relieving the defendants of their liability. The court also assessed the value of the property as it had dropped due to the misleading representations, determining that the quantum could be assessed by reference to sales occurring after the contract date. The court further addressed the issue of interest rates, deciding that the trial judge had the discretion to award interest at a rate above the statutory rate. Additionally, the court considered whether the plaintiff's receipt of negligent advice from their solicitor constituted contributory negligence, finding that it did not absolve the defendants of their liability. Finally, the court reviewed the costs awarded, determining that the judge acted reasonably in assessing standard costs despite the rejected offer of compromise.

In summary, the court dismissed both the appeal and the cross-appeal, ordering that costs be paid by the respective parties as determined. This decision upheld the original findings and penalties, reflecting the court's assessment of the evidence and legal principles involved in the case.

Orders

Orders of the court

(1) Appeal dismissed with costs; (2) Cross-appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Banks & Anor v Copas Newnham P/L & Ors [2002] QCA 217
PARTIES:	RODNEY ROY BANKS & JEANETTE ELLEN BANKS (plaintiffs/first respondents) v COPAS NEWNHAM PTY LIMITED ACN 009 893 172 (first defendant/second appellant) GRAHAM NEWNHAM (second defendant/first appellant) WONDERLEY AND HALL (A FIRM) (third defendant/second respondent)
FILE NO/S:	Appeal No 9434 of 2001 DC No 3792 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 June 2002
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2002 and 22 May 2002
JUDGES:	McMurdo P, McPherson JA, and Mackenzie J Separate reasons for judgment of each member of the Court each concurring as to the orders made.
ORDERS:	(1) Appeal dismissed with costs; (2) Cross-appeal dismissed with costs.
CATCHWORDS:	TRADE & COMMERCE - TRADE PRACTICES AND RELATED MATTERS - CONSUMER PROTECTION - MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT - PARTICULAR CLASSES OF CONDUCT - REAL ESTATE TRANSACTIONS - representations made by selling agent with no suggestion the information conveyed contained opinions of others - whether sales agent considered mere ‘messenger’ TRADE & COMMERCE - TRADE PRACTICES AND RELATED MATTERS - CONSUMER PROTECTION - MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT - CHARACTER AND ATTRIBUTES OF CONDUCT - EXCLUSION CLAUSES AND DISCLAIMERS - disclaimers misleading and legally unenforceable - whether defendants can be thereby relieved of liability for misleading representations TRADE & COMMERCE - TRADE PRACTICES AND RELATED MATTERS - ENFORCEMENT & REMEDIES - PENALTIES - PECUNIARY PENALTIES: QUANTUM AND LIKE MATTERS - value of property dropped because representations were misleading - whether quantum assessed by reference to sales occurring after contract date acceptable INTEREST - RATE OF INTEREST AND COMPOUND INTEREST - RATE IN OTHER CASES - trial judge awarded interest at rate above the statutory rate - whether within judicial discretion to reduce interest to statutory rate. TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - OTHER CASES - purchaser received negligent advice from solicitor - whether can be considered contributory negligence by plaintiff PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF THE WHOLE ACTION - WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE - OFFER OF COMPROMISE MADE - plaintiff makes offer to settle - third defendant invites first and second defendants to join in settlement - invitation rejected - whether judge acted reasonably in assessing standard costs where offer was rejected Fair Trading Act 1989 (Qld), s 6(3) Trade Practices Act 1974 (Cth), s 51A, s 51A(1), a 51A(2), s 52, s 52A(3), s 75B(a), s 75B(c), s 75B(1)(c) Uniform Civil Procedure Rules, r 360(1), r 363 Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719, 743, referred to Brown v Harkins [2001] NSWSC 15, distinguished Brown v Raphael [1958] Ch 637, referred to Gould v Vaggelas (1985) 157 CLR 215, 220-221, 266, applied John G Glass Estate Pty Ltd v Karawi Constructions Pty Ltd (1993) ATPR §41-249, referred…