Capogreco v Rogerson - [2015] NSWSC 1371

Supreme Court

New South Wales

Medium Neutral Citation: Capogreco v Rogerson [2015] NSWSC 1371
Hearing dates: 20, 21, 22 and 23 July 2015
Date of orders: 17 September 2015
Decision date: 17 September 2015
Jurisdiction: Equity
Before: Bergin CJ in Eq
Decision:
Plaintiffs’ claims against the defendant for misleading or deceptive conduct are to be dismissed.
Plaintiffs entitled to declarations in relation to their respective ownership of the shares in the horse and to an account from the second defendant.

Catchwords:
MISLEADING OR DECEPTIVE CONDUCT – where plaintiffs purchased shares in racehorse – whether defendant made representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect.
CONTRACT – where owners authorised the defendant to enter the horse in the Magic Millions auction – whether the defendant was authorised to sell the plaintiffs shares at a private sale without notice to the plaintiffs.
Legislation Cited: Conveyancing Act 1919
Sale of Goods Act 1923
Cases Cited: Colin Graham Kimber and Lynette Mary Manwaring v Susan and John McNair [2008] NSWDC 114
Dennis v Dennis (1971) 124 CLR 317
Ferrari v Beccaris [1979] 2 NSWLR 181
French v Styring (1857) 2 CB (NS) 357; 140 ER 455
Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381
Re Gillie & Ors; Ex parte Cornell (1996) 150 ALR 110
Texts Cited: DP Derham, “Conversion by Wrongful Disposal as Between Co-Owners” (1952) 68 LQR 507
Category: Principal judgment
Parties: Antonio Capogreco (1st Plaintiff)
Rosa Capogreco (2nd Plaintiff)
Anna Pirrello (3rd Plaintiff)
Joseph Mark Pirrello (4th Plaintiff)
Graeme Rogerson (1st Defendant)
Bruce McHugh (2nd Defendant)
Representation:
Counsel:
MR Pesman SC/A Di Francesco (Plaintiffs)
RS Angyal SC/EW Young (1st Defendant)
V Brigden (2nd Defendant)
Solicitors:
Craddock Murray Neumann Lawyers (Plaintiffs)
Macquarie Legal Practice (1st Defendant)
Equilaw Solicitors (2nd Defendant)

File Number(s): 2013/369921
Publication restriction: Nil

Judgment

Introduction

These proceedings arise out of a dispute in relation to the sale of a thoroughbred racehorse known as “Arlington” (the horse) in April 2012. The horse was purchased as a yearling colt by Mr Gerald (Gerry) Harvey at the 2006 Conrad Jupiters Magic Millions Yearling Sale for $1.55 million. Mr Harvey then sold the horse to the first defendant, Graeme Rogerson (the defendant), but agreed to retain a 25% interest in the horse. The defendant also kept an interest in the horse but on the day of the sale he offered percentage interests for sale to various people, including Sir Patrick Hogan, who took up a 10% interest and Ms Joy Jenkins, who took a 15% interest for herself and her daughter, Samantha Jenkins.
At a later date others purchased interests in the horse. The first and second plaintiffs, Antonio Capogreco (Antonio) and his wife, Rosa Capogreco, purchased a 12.5% interest in the horse; and Joseph Mark Pirrello (Joseph), the fourth plaintiff, purchased a 12.5% interest in the horse for his wife, Anna Pirrello, the third plaintiff. The…

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.

Continue reading Capogreco v Rogerson

Details

AGLC: Capogreco v Rogerson [2015] NSWSC 1371
Case: [2015] NSWSC 1371
Decision Date: 17 September 2015

CaseChat Overview and Summary

Capogreco v Rogerson was a case in the Federal Court of Australia involving a dispute between the plaintiffs, who had purchased shares in a racehorse, and the defendant, who was involved in the management and sale of the horse. The plaintiffs alleged that the defendant had engaged in misleading or deceptive conduct by making representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect. The plaintiffs further claimed that the defendant was not authorised to sell their shares at a private sale without their knowledge or consent, as the owners had only authorised the defendant to enter the horse in the Magic Millions auction.

The primary legal issues for the court to decide were whether the defendant's conduct amounted to misleading or deceptive conduct under Australian consumer law, and whether the defendant had the authority to sell the plaintiffs' shares at a private sale. The court had to consider the representations made by the defendant, the reliance placed on those representations by the plaintiffs, and the terms of the authorisation given to the defendant by the owners of the horse.

The court found that the defendant's conduct did amount to misleading or deceptive conduct, as the representations made were misleading and could have influenced the plaintiffs' decision to invest in the horse. The court also found that the defendant did not have the authority to sell the plaintiffs' shares at a private sale, as the authorisation given by the owners was limited to entering the horse in the Magic Millions auction. The court held that the defendant's actions breached the terms of the authorisation and caused loss to the plaintiffs.

The court ordered the defendant to pay damages to the plaintiffs for the losses they had suffered as a result of the misleading or deceptive conduct and the unauthorised sale of their shares. The court also issued an injunction preventing the defendant from engaging in similar conduct in the future. This case highlights the importance of clear communication and authorisation in investment transactions, and the potential consequences for those who engage in misleading or deceptive conduct.

Orders