Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259 Hearing dates: 29 June 2011 Decision date: 02 September 2011 Before: Allsop P at 1
Basten JA at 86
Young JA at 87Decision: On or before 23 September 2011 the parties place in the Court of Appeal submissions box and serve any submissions on the form of orders including costs, having on or before 16 September 2011 served on each other draft submissions.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TRADE AND COMMERCE - Fair Trading Act 1987 (NSW) - misleading and deceptive conduct - representations concerning matters connected with purchase of rural land - and (second) as to reliability of valuations in existence - reliance on Act not waived.
TRADE AND COMMERCE - Fair Trading Act 1987 (NSW) - causation and relief - tortious analogue of loss not to be applied - misleading and deceptive conduct affected price negotiations - proper form of relief in circumstances - appropriate to order return of deposits.
CONTRACT - election - affirmation - no affirmation in circumstances where purchasers sought to enforce rights as qualified by statutory remedies.Legislation Cited: Conveyancing Act 1919 (NSW), s 55(2A)
Fair Trading Act 1987 (NSW), ss 42, 68, 68(1), 72, 72(5)(a)
Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW), Sch 1
Trade Practices Act 1974 (Cth), ss 82(1), 87Cases Cited: Abraham v Mallon (1975) 1 BPR 9157
Baird v Chambers (2010) 15 BPR 28,337
Barnes v Hay (1988) 12 NSWLR 337
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304
Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45
Chappel v Hart [1998] HCA 55; 195 CLR 232
Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134
Elbourne v Gibbs [2006] NSWCA 127
Environmental Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22
Fitzgerald v Penn [1954] HCA 74; 91 CLR 268
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; 160 CLR 1
Henville v Walker [2001] HCA 52; 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109
Janssen-Gilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526
Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; 184 CLR 281
Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19;
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- Case
- [2011] NSWCA 259
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the appellant had engaged in misleading or deceptive conduct, and if so, what form of relief was appropriate. This included determining whether the respondents had waived their reliance on the *Fair Trading Act* and whether their conduct amounted to an affirmation of the contract, thereby precluding them from seeking statutory remedies. The court also had to consider the appropriate measure of damages or other relief, particularly in light of the fact that the misleading conduct had influenced the price negotiations.
The Court of Appeal reasoned that the respondents had not waived their rights under the *Fair Trading Act* and that their actions did not constitute an affirmation of the contract in a way that would disentitle them to relief. The court found that the misleading conduct had a causal connection to the loss suffered by the purchasers. Applying the principles of statutory relief under the *Fair Trading Act*, the court determined that the tortious analogue of loss was not the appropriate measure. Instead, given that the misleading representations had affected the price negotiations, the court considered it appropriate to order the return of the deposits paid by the purchasers. The court therefore made orders regarding the form of final orders, including costs, to be settled by the parties.
Orders
Orders of the court
On or before 23 September 2011 the parties place in the Court of Appeal submissions box and serve any submissions on the form of orders including costs, having on or before 16 September 2011 served on each other draft submissions.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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