Camden v Mckenzie

Case [2007] QCA 136


SUPREME COURT OF QUEENSLAND

CITATION:

Camden & Anor v McKenzie & Ors [2007] QCA 136

PARTIES:

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

Trade Practices Act 1974 (Cth), s 51A, s 52

Bawden v ACI Operations P/L [2003] QCA 293; Appeal No 3970 of 2002, 18 July 2003, applied
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, considered
Crystal Dawn P/L & Anor v Redruth P/L [1998] QCA 373; Appeal No 9868 of 1998, 17 November 1998, applied
Cypressvale P/L & Anor  v Retail Shop Leases Tribunal[1995] QCA 187; [1996] 2 Qd R 462, applied
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431, distinguished
Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] 6 VR 1, applied
Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, applied
Mifsud v Campbell (1991) 21 NSWLR 725, considered
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, distinguished
   

COUNSEL:

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

  1. KEANE JA:  On 15 December 1994, the appellants…

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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.

Orders

Orders of the court

1. Appeal dismissed

2. Appellants to pay respondents' costs of appeal

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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