Carneiro v Robinson (No 2) - [2005] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CARNEIRO & ANOR v ROBINSON & ORS (NO 2)
Reasons of His Honour Judge Robertson
9 November 2005
PROCEDURE - COSTS
Plaintiffs successful in claim for misrepresentation - Plaintiffs received a small award of damages - Plaintiffs obtained final injunctive relief relying upon promissory estoppel - application that Plaintiffs receive no order for costs on misrepresentation claim - application relying upon Section 42(2) of the District Court Act 1991 refused - refusal to consider a Calderbank offer in the exercise of the discretion - apportionment of costs in the exercise of the discretion.
Misrepresentation Act 1972; Fair Trading Act 1987 ss56 & 85; Trade Practices Act 1974 ss52, 87 & 87(1A); District Court Act 1991 s42(2); Magistrates Court Act 1991 ss3(1), 3(2), 8(1) & 10; District Court Rules r 40, referred to.
Conroy's Port Pirie Abattoirs v Channel Seven Adelaide (No 3) [2005] SADC 110; City of Victor Harbor v Roeger & Anor (2002) 82 SASR 140; Morris v McEwen & Anor [2005] SASC 284, applied.

CARNEIRO & ANOR v ROBINSON & ORS (NO 2)
[2005] SADC 151
JUDGE ROBERTSON
CIVIL

The Plaintiffs obtained a judgment for two thousand dollars damages against all Defendants. The Second and Third Defendants were found to have made misrepresentations and liable to damages pursuant to the Misrepresentation Act 1972, arising from the sale of a vacant allotment of land. Furthermore, as a result of the misrepresentations, the Defendants were found to have engaged in misleading and deceptive conduct in breach of Section 56 of the Fair Trading Act 1987 (“FTA”). The misrepresentations were made by the Second Defendant Southgate Real Estate (“Southgate”), who were acting as land agents for the First Defendant (“Mrs Robinson”), and the Third Defendant (“Mr Holt”), an employee of Southgate. Mrs Robinson was held to be liable for the misrepresentations and to be guilty of misleading or deceptive conduct in breach of Section 56 of the FTA as a result of the conduct of her agents.
The proceedings centred upon a narrow strip of unmade land immediately adjacent to the vacant allotment of land purchased by the Plaintiffs from Mrs Robinson. It was represented to the Plaintiffs, prior to entering into the Agreement to purchase, that the land was a public roadway which they could use to enter and exit their land to gain access to the street abutting the front of their land. Such a representation was false. It was not a public road, but a strip of land leading from the main street to allow access to a large piece of land to the rear of the Plaintiffs’ land. This large piece of land, and the strip of land, were owned by Mrs Robinson.
In addition to the damages, the Plaintiffs obtained injunctive relief against Mrs Robinson in which she is restrained from hindering the Plaintiffs’ use of the strip of land to gain access to their property. This relief was granted relying upon the doctrine of…

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 Carneiro v Robinson (No 2)

Details

AGLC: Carneiro v Robinson (No 2) [2005] SADC 151
Case: [2005] SADC 151
Decision Date: 9 November 2005

CaseChat Overview and Summary

The case of Carneiro v Robinson (No 2) involved plaintiffs who successfully claimed misrepresentation and obtained final injunctive relief based on promissory estoppel. The plaintiffs were awarded a modest sum in damages. The defendants applied for the plaintiffs to receive no order for costs on the misrepresentation claim, citing Section 42(2) of the District Court Act 1991. They also argued that the court should not consider a Calderbank offer when exercising its discretion. The court was required to determine whether to exercise its discretion under Section 42(2) to order the plaintiffs to pay no costs and whether to consider the Calderbank offer in making its decision.

The court thoroughly examined the legal principles underpinning the discretion to order costs under Section 42(2) and the relevance of a Calderbank offer. It concluded that the plaintiffs were entitled to an order for costs as the defendants' application was unsuccessful. The court found that the refusal to consider the Calderbank offer did not impact the exercise of its discretion. The court apportioned costs between the parties, considering the relative success of each party's claims and the overall conduct of the litigation.

The court's reasoning demonstrated a careful balance of the statutory provisions and the principles of procedural fairness. By refusing to consider the Calderbank offer, the court ensured that its discretion was exercised independently. The apportionment of costs reflected the court's assessment of the parties' overall success and the conduct of the litigation. The court's decision provided clarity on the application of Section 42(2) and the role of Calderbank offers in cost decisions.

The final orders of the court included a refusal to make a no order for costs on the misrepresentation claim, an apportionment of costs between the parties, and specific directions regarding the payment of costs. This decision provided a clear outcome for the parties and highlighted the court's approach to cost decisions in cases involving successful claims and injunctive relief.

Orders