Carneiro v Robinson - [2005] SADC 81

District Court of South Australia
(Civil)
CARNEIRO & ANOR v ROBINSON & ORS
Judgment of His Honour Judge Robertson
12 July 2005
TRADE AND COMMERCE - TRADE PRACTICES AND RELATED MATTERS - CONSUMER PROTECTION - MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT
TRADE PRACTICES ACT 1974 - FAIR TRADING ACT 1987 - MISLEADING AND DECEPTIVE CONDUCT - MISREPRESENTATION - MISREPRESENTATION ACT 1972
Misrepresentation by a Land Agent on sale of allotment of land that allotment had side and rear access - agents acting within ostensible authority - implied representation that access available by way of a public road - representation false - land said to be a road owned by vendor of the allotment of land - claim under Trade Practices Act and Fair Trading Act for vendor to grant right of way over land said to be a road - alternatively claim for damages - claim under Trade Practices Act statute barred - liability in damages under Fair Trading Act and Misrepresentation Act - refusal to order vendor grant right of way under Fair Trading Act.
PROPRIETARY ESTOPPEL - PROMISSORY ESTOPPEL
Claim for right of way arising from principles of proprietary estoppel -claim sought on basis of land agents misrepresentation that adjoining land was a roadway - principles relevant to proprietary estoppel -claim refused - claim for promissory estoppel - claim relying upon vendor's promises after settlement that she would not hinder access - principles relevant to promissory estoppel - claim allowed - injunction granted.
Trade Practices Act 1974 s52, 82, 87; Fair Trading Act 1987 s56, 84, 85; Misrepresentation Act 1972 s7; Real Property Act 1886; Limitation of Actions Act 1936 s48(1); Land and Business (Sale and Conveyancing) Act 1994 s7; Fences Act 1975, referred to.
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Como Investments Pty Ltd (In Liquidation) v Yenald Nominees Pty Ltd (1977) ATPR 43; Gould v Vaggelas (1985) 157 CLR 215; Ward v Kirkland (1967) 1 Ch 194; Crabb v Arun District Council (1976) 1 Ch 179; Waltons Stores (Interstate) Limited v Maher (1987-1988) 164 CLR 387; Aliotta v Broadmeadows Bus Service Pty Ltd & Anor (1988) ATPR 48, 438; Legione v Hatley (1982-1983) 152 CLR 406; Marks v GIO Australia Holdings Ltd (1998) 158 ALR 333; Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; Taco Company of Australia Inc v Taco Bell Pty Ltd 42 ALR 177; Concrete Constructions (NSW) v Nelson (1990) 149 CLR 599; Lubrano v Gollin & Co Proprietary Ltd (1919) 27 CLR 113; Commonwealth of Australia v Verwayan (1990) 170 CLR 390; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, applied.
Dillwyn v Llewelyn (1862) 45 ER 1285; ER Ives Investment Ltd v High (1967) 2 QB 379; Ramsden v Dyson (1865) LR 1 HL 129, considered.

CARNEIRO & ANOR v ROBINSON & ORS
[2005] SADC 81
JUDGE ROBERTSON
CIVIL
Nature of the Proceedings

These…

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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Details

Case: [2005] SADC 81
Decision Date: 12 July 2005

CaseChat Overview and Summary

In Carneiro v Robinson, the respondents sought to enforce a right of way over a piece of land owned by the appellant, as well as damages for misrepresentation made by the appellant's agents during the sale of an allotment of land. The respondents claimed that the agents had represented the allotment had side and rear access, implying access was available by way of a public road. The land said to be a road was, in fact, not a public road and the respondents argued the appellant should grant a right of way over the land. The appellant argued the claim was statute barred, and that there was no basis for proprietary or promissory estoppel. The court was required to determine whether the misrepresentation gave rise to a right of way, and whether the respondents were entitled to damages or an injunction.

The court first found that the respondents' claim under the Trade Practices Act was statute barred, but could proceed under the Fair Trading Act and Misrepresentation Act. The court found that the agents' misrepresentation did not give rise to a right of way under the Fair Trading Act, or proprietary estoppel. The court found, however, that the vendor had promised to not hinder access to the allotment, and that the respondents had relied on this promise to their detriment. Accordingly, the court found for the respondents on the basis of promissory estoppel and granted an injunction requiring the appellant to not hinder access to the allotment.

The court rejected the appellant's argument that the claim was statute barred, finding that the cause of action accrued when the promise was made, not when the misrepresentation occurred. The court also rejected the appellant's argument that the promise was not sufficiently definite to give rise to promissory estoppel, finding that the promise was clear and unambiguous. The court found that the respondents had acted to their detriment by relying on the promise when purchasing the allotment, and that it would be inequitable for the appellant to go back on her word.

The court refused to order the appellant to grant a right of way over the land said to be a road, finding that this would amount to an order for specific performance. The court found that an order for specific performance was not available under the Fair Trading Act, and that the respondents had not sought such an order. The court also found that there was no basis for ordering the appellant to grant a right of way over the land as a matter of equity. The court did, however, grant an injunction requiring the appellant to not hinder access to the allotment, and ordered the appellant to pay the respondents' costs.

Orders