Conacher v Crews - [2007] NSWDC 271

CITATION: Conacher & Ors v Crews [2007] NSWDC 271

HEARING DATE(S): 12, 13, 14, 15, 19 November 2007

JUDGMENT DATE:
13 December 2007

JUDGMENT OF: Rein SC DCJ

DECISION: 1. Judgment for 1st Plaintiff for $50,000 plus interest.; 2. Judgment for 2nd Plaintiff for $50,000 plus interest.; 3. Judgment for 3rd Plaintiff for $50,000 plus interest.; 4. Judgment for 4th Plaintiff for $99,900 plus interest.; 5. Crews to pay each of the Plaintiffs' costs of the proceedings.

CATCHWORDS: Purchase of shares on the basis of alleged misrepresentations about company and its products - Whether statements made, whether plaintiffs relied on statements in making decision to purchase shares - S.42 Fair Trading Act (s.52 Trade Practices Act) - Assessment of damages

LEGISLATION CITED: Fair Trading Act 1987
Trade Practices Act 1974 (Cth)

CASES CITED: Henville v Walker (2001) 206 CLR 459
I and L Securities v HTW Valuers (2002) HCA 41
Gould v Vaggelas (1985) 157 CLR 215
Wardley Australia v Western Australia (1992) 175 CLR 314
Gould v Vaggelas (1983) 157 CLR 214
Barley v Wartford (1846) 9 QB 197
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950
HTW [2004] HCA 54; 217 CLR 640
Watson v Foxman (2000) 49 NSWLR 315

PARTIES: Peter Conacher (Plaintiff 1)
Peter Smith (Plaintiff 2)
Ralph Leslie O'Shea (Plaintiff 3)
Gregory Veivers (Plaintiff 4)
Terry Crews (Defendant)

FILE NUMBER(S): 2230/04; 2243/04; 3762/04; 4360/04

COUNSEL: Mr R Colquhoun (All plaintiffs)
Mr P Walsh (Defendant)

JUDGMENT

1 These proceedings concern a company called Multelink Australia Pty Ltd (which later became Multelink Australia Ltd) (“Multelink”) in which each of the plaintiffs purchased a parcel of shares. Mr R Colquhoun of Counsel appears for all four plaintiffs. By consent, all four matters were heard together and evidence in one was treated as evidence in the other.

2 The defendant, Mr Terry Crews (“Crews”) for whom Mr P Walsh of Counsel appears, was at all material times Chairman and Chief Executive Officer of Multelink, and the plaintiffs claim that Crews made statements about Multelink and a telephone known as a Smartphone which Multelink sold to the public, which statements induced them to buy their respective parcel of shares in Multelink and which it is claimed involved misleading and deceptive conduct by Crews in breach of s.52 of the Trade Practices Act (“TPA) and s.42 of the Fair Trading Act (“FTA”). The plaintiffs do not argue that any distinction between s.52 TPA and s.42 FTA is material and I shall therefore refer only to s.42 and other sections of the FTA.

3 There is no dispute that:

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: [2007] NSWDC 271
Decision Date: 13 December 2007

CaseChat Overview and Summary

The case of Conacher v Crews involved the plaintiffs, who were prospective shareholders, suing the defendant, Crews, for misrepresentations about the company and its products, leading to their decision to purchase shares. The matter was heard in the Federal Court of Australia. The plaintiffs claimed that the defendant made false statements that induced them to purchase shares in the company. They sought relief under the Fair Trading Act and the Trade Practices Act, as well as an assessment of damages.

The court was required to determine several key issues. Firstly, whether the defendant made the alleged misrepresentations; secondly, whether the plaintiffs relied on these statements when deciding to purchase the shares; and thirdly, if so, what damages were payable under the Fair Trading Act and Trade Practices Act. The court also needed to assess the appropriate amount of damages to be awarded to the plaintiffs.

The court found that the defendant had indeed made the misrepresentations, which the plaintiffs had relied upon when purchasing the shares. It was determined that the plaintiffs were entitled to relief under the Fair Trading Act and Trade Practices Act. The court assessed the damages and awarded judgment to each plaintiff accordingly, with varying amounts due to differences in their individual circumstances. The court ordered that the defendant pay each plaintiff's costs of the proceedings.

The final orders of the court were as follows: judgment was awarded to the first plaintiff for $50,000 plus interest; to the second plaintiff for $50,000 plus interest; to the third plaintiff for $50,000 plus interest; to the fourth plaintiff for $99,900 plus interest; and the defendant was ordered to pay each plaintiff's costs of the proceedings.

Orders

Orders of the court

1. Judgment for 1st Plaintiff for $50,000 plus interest.; 2. Judgment for 2nd Plaintiff for $50,000 plus interest.; 3. Judgment for 3rd Plaintiff for $50,000 plus interest.; 4. Judgment for 4th Plaintiff for $99,900 plus interest.; 5. Crews to pay each of the Plaintiffs' costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Conacher & Ors v Crews [2007] NSWDC 271
HEARING DATE(S):	12, 13, 14, 15, 19 November 2007
JUDGMENT DATE:	13 December 2007
JUDGMENT OF:	Rein SC DCJ
DECISION:	1. Judgment for 1st Plaintiff for $50,000 plus interest.; 2. Judgment for 2nd Plaintiff for $50,000 plus interest.; 3. Judgment for 3rd Plaintiff for $50,000 plus interest.; 4. Judgment for 4th Plaintiff for $99,900 plus interest.; 5. Crews to pay each of the Plaintiffs' costs of the proceedings.
CATCHWORDS:	Purchase of shares on the basis of alleged misrepresentations about company and its products - Whether statements made, whether plaintiffs relied on statements in making decision to purchase shares - S.42 Fair Trading Act (s.52 Trade Practices Act) - Assessment of damages
LEGISLATION CITED:	Fair Trading Act 1987 Trade Practices Act 1974 (Cth)
CASES CITED:	Henville v Walker (2001) 206 CLR 459 I and L Securities v HTW Valuers (2002) HCA 41 Gould v Vaggelas (1985) 157 CLR 215 Wardley Australia v Western Australia (1992) 175 CLR 314 Gould v Vaggelas (1983) 157 CLR 214 Barley v Wartford (1846) 9 QB 197 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 HTW [2004] HCA 54; 217 CLR 640 Watson v Foxman (2000) 49 NSWLR 315
PARTIES:	Peter Conacher (Plaintiff 1) Peter Smith (Plaintiff 2) Ralph Leslie O'Shea (Plaintiff 3) Gregory Veivers (Plaintiff 4) Terry Crews (Defendant)
FILE NUMBER(S):	2230/04; 2243/04; 3762/04; 4360/04
COUNSEL:	Mr R Colquhoun (All plaintiffs) Mr P Walsh (Defendant)