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Corani & Corani v Wright, Wright and Basheer & De Conno Pty Ltd

Corani & Corani v Wright, Wright and Basheer & De Conno Pty Ltd

Case [2004] SADC 154 5 November 2004

Misleading or Deceptive Conduct

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CORANI & CORANI v WRIGHT, WRIGHT AND BASHEER & DE CONNO PTY LTD
Judgment of His Honour Judge Smith
5 November 2004
TRADE PRACTICES
Misleading or deceptive conduct – misstatement in sales material provided by defendant agent as to area of land to be sold – effect of disclaimer clause in sales material – whether purchaser, plaintiffs, relied upon misstatement – purchasers elected to settle on contract reserving their rights to claim damages – whether such election to settle negatived reliance so that purchasers estopped from claiming damages – measure of loss or damage whether confined by analogies with tort law – whether natural person vendors can be secondarily liable pursuant to ss 82(1) and 75B for agent’s contravention of s52 – knowledgeable complicity required for “involvement” – mere principal and agent relationship by itself not sufficient for involvement – discussion of rights of contribution and indemnity where there is a mix of statutory and general law causes of action – whether defendants entitled to equitable contribution or indemnity.
FAIR TRADING
Misleading or deceptive conduct – whether natural person vendors “involved” within meaning of s84(1) in agent’s contravention of s56 – “involvement” not circumscribed by any provision similar to s75B of Trade Practices Act 1974 (Cth) – discussion of whether principal and agent relationship of itself amounts to involvement where agents contravening conduct is within authority.
Trade Practices Act 1974 (Cth) ss 52, 82; Fair Trading Act 1987 (SA) (SA) ss 56, 84; Misrepresentation Act 1972 (SA) s7, referred to.
Brown v Jam Factory Pty Ltd (1981) 53 FLR 340; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83; Fencott v Muller (1982-1983) 152 CLR 570; Yorke v Lucas (1983) 46 ALR 319; Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR 216; Yorke & Anor v Lucas (1985) 158 CLR 661; I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002] 210 CLR 109; Burke v LFOT Pty Ltd (2002) 209 CLR 282; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; McMahon v Pomeray Pty Ltd (1991) ATPR 52,851 (41-125); Burg Design Pty Ltd v Wolki (1999) 162 ALR 639; Wardley Australia Ltd v WA (1992) ATPR 40,565 (41-189); Como Investments Pty Ltd (In Liq.) v Yenald Nominees Pty Ltd (1997) ATPR 41-550 at 43,619 ; Redgrave v Hurd (1881) 20 ChD 1; Gould v Vaggelas & Ors (1985) 175 CLR 215; Commonwealth v Verwayen (1990) 170 CLR 394; Sargent v ASL Developments Ltd (1974) 131 CLR 634; MacCormick v Nowland (1988) ATPR 49,180 (40-852); Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Gates v City Mutual Life Assurance Society Ltd (1986)…

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

AGLC: Corani & Corani v Wright, Wright and Basheer & De Conno Pty Ltd [2004] SADC 154
Case: [2004] SADC 154
Decision Date: 5 November 2004

CaseChat Overview and Summary

The case of Corani & Corani v Wright, Wright and Basheer & De Conno Pty Ltd involved the plaintiffs, Mr and Mrs Corani, bringing a claim against the defendants, comprising both the real estate agents and the natural person vendors, for misleading or deceptive conduct under the Australian Consumer Law. The plaintiffs alleged that the defendants provided misleading information regarding the area of land to be sold, which influenced their decision to purchase. The dispute was heard by the Federal Court of Australia.

The primary legal issues before the court were whether the plaintiffs had relied on the misleading information, whether their decision to settle on the contract negated their reliance, and if so, whether they were estopped from claiming damages. Another issue was the measure of damages or loss, considering whether it should be confined by principles analogous to those in tort law. Additionally, the court had to determine whether the natural person vendors could be held secondarily liable under sections 82(1) and 75B of the Australian Consumer Law for the agent's contravention of section 52, and if so, what level of involvement was required. The court also needed to address the rights of contribution and indemnity where both statutory and general law causes of action were involved.

In its decision, the court held that the plaintiffs had indeed relied on the misstated information provided by the defendants. However, the court found that the disclaimer clause in the sales material did not negate the reliance. The court rejected the argument that the election to settle on the contract precluded the plaintiffs from claiming damages, as it did not bar their right to seek compensation. Regarding the measure of damages, the court held that it should not be confined by analogies with tort law but instead be assessed based on the actual loss suffered by the plaintiffs. Concerning secondary liability, the court determined that a mere principal and agent relationship was not sufficient for involvement under sections 82(1) and 75B, and that there needed to be a higher degree of knowledge or complicity. Finally, the court considered the rights of contribution and indemnity, concluding that the defendants were not entitled to equitable contribution or indemnity in this case.

The court ordered the real estate agents to pay damages to the plaintiffs for the misleading or deceptive conduct. The vendors were held not liable under sections 82(1) and 75B, but the court left open the possibility of a general law claim against them. The court also ruled that the real estate agents were not entitled to any equitable contribution or indemnity from the vendors.

Orders