Conduit Advertising Pty Ltd & Anor v Andrew Burt Anderson

[2012] HCASL 135

CONDUIT ADVERTISING PTY LTD & ANOR

v

ANDREW BURT ANDERSON & ANOR

[2012] HCASL 135
P42/2011

1. The first applicant, Conduit Advertising Pty Ltd, engaged the second respondent, Anderson Earthmoving Pty Ltd as trustee for the Anderson Earthmoving Trust, to carry out work on a residential development site.  The work took place and the applicants subsequently alleged that the first respondent, Andrew Burt Anderson, engaged in misleading and deceptive conduct when making representations regarding the development to the second applicant, Robert Auguste, the director of the first applicant.  The applicants also alleged that the work was incomplete so as to amount to breach of contract and negligence.

2. On 14 October 2008, the applicants commenced proceedings in the Federal Magistrates Court of Australia seeking damages.  On 10 December 2010, the Federal Magistrates Court (Lucev FM) dismissed the application with costs.  His Honour held that the applicants failed to discharge their onus of proving breach of contract or negligence.  With respect to assertions of misleading and deceptive conduct, his Honour noted both (a) the lack of recollection of anyone but the first respondent regarding the purported representations and (b) the lack of challenge to his recollection in light of the evidence.

3. On 24 December 2010, the applicants appealed to the Federal Court of Australia.  On 25 August 2011, the Federal Court (Barker J) dismissed the appeal.  His Honour held that the decision of Lucev FM was not based on credibility findings, rather on the unchallenged evidence of the first respondent.  On review of the evidence his Honour concluded that the decision at first instance was correct.

4. The applicants seek special leave to appeal to this Court against the whole of the decision of the Federal Court.  The application raises no issue of law which would justify the grant of special leave.  To the extent that the application raises issues of fact, there is no reason to doubt the correctness of the decision of the Federal Court.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

W.M.C. Gummow
15 August 2012 S.M. Kiefel