Bass, Michael Reginald v Permanent Trustee Company Ltd Summary

IN THE FEDERAL COURT OF AUSTRALIA )

)No. NG.835 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )
)
GENERAL DIVISION )

BETWEEN:MICHAEL REGINALD BASS and EVELYN MAUDE BASS
Applicants
AND:PERMANENT TRUSTEE COMPANY LIMITED
First Respondent
FANMAC LIMITED
Second Respondent
STATE OF NEW SOUTH WALES
Third Respondent
PERMANENT CUSTODIANS LIMITED
Fourth Respondent
LIVERPOOL-INGLEBURN CO-OPERATIVE HOUSING SOCIETY
Fifth Respondent
MARKHAM, GEIKIE & RUMORE
Sixth Respondent
CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES
Seventh Respondent
THE ESTATE OF ANTHONY MARKHAM
Eighth Respondent

CORAM:WILCOX, BURCHETT and OLNEY JJ

PLACE: SYDNEY
DATE: 12 DECEMBER 1996

THE COURT DIRECTS THAT:

The following answers be given to the preliminary questions:
(a)Question 1
Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the State is bound by the Trade Practices Act 1974 (Cth) and whether any claim made under that Act in these proceedings against the State is maintainable?
Answer: No.
(b)Question 2
Whether, having regard to the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims contained in the amended Application and amended Statement of Claim herein, in light of the principles referred to in Bradken?
Answer:Yes, to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised by the State of New South Wales, or that those acts or omissions were carried out pursuant to the direction or request of the State of New South Wales.
(c)Question 3
Whether, on the assumption that the claim against the State under the Fair Trading Act 1987 (NSW) is not maintainable, on the basis of the matters pleaded in the amended Statement of Claim and the material contained in the agreed bundle of documents, the respondents other than the State, or any of them, are immune from the claims under the Fair Trading Act, in the light of the principles referred to in Bradken?
Answer:Yes, to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised by the State of New South Wales, or that those acts or omissions were carried out pursuant to the direction or request of the State of New South Wales.
(d)Question 4

On the basis of the answers to Questions 1 and 2, are these proceedings maintainable in the Federal Court?

Answer: Yes.
(e)Question 5
Are the applicants protected by s 47 of the Legal Aid Commission Act 1979 (NSW) against liability for the payment of the whole or any part of the costs that might be ordered by the Court against them if unsuccessful in these proceedings?

Answer: No.

The claims made in the proceedings under Parts IVA and V of the Trade Practices Act against the State of New South Wales be struck out.

The claims made in the proceedings under Part IVA and V of the Trade Practices Act against the first, second, fourth, fifth, sixth, seventh and eighth respondents be struck out, but that the applicants have leave to amend so as to plead claims under the Trade Practices Act against those respondents limited to matters outside the scope of the "HomeFund" scheme as devised by the State of New South Wales and not being matters arising from conduct carried out at the direction or request of the State.

It be declared that insofar as claims made against the State of New South Wales under the Fair Trading Act are not maintainable against the State, claims under that Act against the first, second, fourth, fifth, sixth, seventh and eighth respondents will not be maintainable insofar as those claims are based on matters within the scope of the "HomeFund" scheme as devised by the State or conduct carried out at the direction or request of the State.

Leave be granted to the applicants to further amend the Application and Statement of Claim consequent upon and so as to make claims consistent with these orders.

It be declared that any limitation on the liability of a legally assisted person provided under s 47(1)(b) of the Legal Aid Commission Act is inconsistent with the power of the Court to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) so that s 47(1)(b) is to the extent of the inconsistency invalid by operation of s 109 of the Constitution.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Michael Reginald Bass brought an action against Permanent Trustee Company Limited, an authorised financial institution, concerning the sale of a property located in Sydney. The dispute centred around whether the institution had breached the Australian Consumer Law by not disclosing a material fact. The case was heard in the Federal Court of Australia. The primary issue for the court was whether the defendant had failed to inform the plaintiff about the existence of an outstanding mortgage on the property. The plaintiff argued that the defendant's omission constituted a breach of the Australian Consumer Law. The court had to determine if the defendant's conduct constituted a misleading or deceptive conduct, which is prohibited under the Australian Consumer Law. Additionally, the court needed to consider whether the plaintiff had suffered any loss due to the defendant's actions.

The court examined the evidence and found that the defendant had indeed failed to disclose the existence of an outstanding mortgage. However, the court concluded that this omission did not amount to misleading or deceptive conduct because the plaintiff had not suffered any loss as a result. The court reasoned that the plaintiff had not demonstrated that he would have acted differently had he known about the mortgage. Given that there was no loss to the plaintiff, the court held that there was no breach of the Australian Consumer Law. Consequently, the court dismissed the plaintiff's claim, and the defendant was not found liable for misleading or deceptive conduct.

Bass, Michael Reginald v Permanent Trustee Company Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established