PETER JOHN CAMDEN and MAREE ANGELA CAMDEN (plaintiffs/appellants) v MALCOLM B McKENZIE (first defendant/first respondent) RICHARD ELLIS RETAIL MANAGEMENT PTY LTD ACN 052 372 460 (second defendant/second respondent) PERMANENT TRUSTEE AUSTRALIA LIMITED ACN 008 412 913 (third defendant/third respondent)
FILE NO/S:
Appeal No 6683 of 2006 DC No 4749 of 2004
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
20 April 2007
DELIVERED AT:
Brisbane
HEARING DATE:
20 March 2007
JUDGES:
Keane JA, Philip McMurdo and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1. Appeal dismissed 2. Appellants to pay respondents' costs of appeal
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where decision depended on favourable finding as to credibility of first respondent – where reasons given did not advert to conflict of evidence between first respondent and another witness or to related documentary evidence – whether reasons were adequate – whether retrial should be ordered
TRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – MISLEADING OR DECEPTIVE CONDUCT GENERALLY – GENERALLY – where appellants entered lease with third respondent – where first respondent allegedly made representations as to refurbishment of premises – whether representations made in terms alleged – whether representations were misleading – whether representations were material to appellants' decision to enter lease
J C Bell QC, with M A Hoch, for the appellants R S Ashton for the first and second respondents R Perry SC for the third respondent
SOLICITORS:
A.J. Torbey & Associates for the appellants Thynne & Macartney for the first and second respondents Clayton Utz for the third respondent
KEANE JA: On 15 December 1994, the appellants…
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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AGLC
Camden v Mckenzie [2007] QCA 136
Case
[2007] QCA 136
Decision Date
CaseChat Overview and Summary
The appeal was brought by the plaintiffs, Camden, against the decision of the lower court in favour of the defendant, Mckenzie. The plaintiffs sought to challenge the lower court's decision on the grounds that it contained errors of law, specifically that the lower court failed to provide adequate reasons for its decision regarding the credibility of the first respondent and the documentary evidence presented. The matter was heard in the Federal Court of Australia.
The court had to determine whether the lower court's failure to give adequate reasons for its decision amounted to an error of law, and whether the appeal should be dismissed or a retrial ordered. The court also had to decide whether the first respondent made representations to the plaintiffs that were misleading or deceptive, and whether these representations were material to the plaintiffs' decision to enter into a lease with the third respondent.
The court found that the lower court's reasons were inadequate, as they did not address the conflict of evidence between the first respondent and another witness, nor did they consider the relevant documentary evidence. However, the court held that this did not amount to an error of law that would warrant a retrial. The court found that the first respondent did make representations to the plaintiffs regarding the refurbishment of the premises, but these representations were not misleading or deceptive, and were not material to the plaintiffs' decision to enter into the lease. The court dismissed the appeal and ordered the plaintiffs to pay the respondents' costs of the appeal.