Craven v Ready Flowers Pty Ltd - [2012] FMCA 1128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CRAVEN v READY FLOWERS PTY LTD & ANOR

[2012] FMCA 1128

PRACTICE & PROCEDURE – Ruling on preliminary issue raised by pleading – estoppel by convention – no estoppel made out – pleas in defence held good.

Thompson v Palmer (1933) 49 CLR 507

Applicant:

GORDON CRAVEN

First Respondent:

READY FLOWERS PTY LTD

Second Respondent:

GARY ERYL ROY OWEN

File Number:

BRG 167 of 2009

Judgment of:

Jarrett FM

Hearing date:

24 September 2012

Date of Last Submission:

24 September 2012

Delivered at:

Brisbane

Delivered on:

25 September 2012

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:

Ms Muir

Solicitors for the First Respondent:

Archibald & Brown

Counsel for the Second Respondent:

Ms Muir

Solicitors for the Second Respondent:

Archibald & Brown

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 167 of 2009

GORDON CRAVEN

Applicant

And

READY FLOWERS PTY LTD

First Respondent

MR GARY ERYL ROY OWEN

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

(revised from the transcript)

These are my reasons on a preliminary issue that I directed yesterday be determined immediately upon the commencement of the trial in this case. The issues to be determined arise from paragraphs 4(c) and (e) and paragraph 7 of the defence filed by the first and second respondent on 24 May, 2012. It was necessary to take some evidence from a witness for the first respondent – Mr Hegarty. He was cross-examined by Mr Craven who is appearing for himself in this application.
The principal application arises from an online internet retailing business whereby flowers are sold to consumers. Mr Craven brings the principal application alleging that the respondents have breached the relevant State and Federal consumer protection laws.
The claim in this case is articulated in an amended statement of claim filed on 20 April, 2012. By the amended statement of claim the applicant alleges that he has an entitlement to sue and that the first respondent is capable of being sued.
The claim against the first respondent is one based upon representations said to have been made by the first respondent to “an average consumer”. Paragraph 1 and its subparagraphs in the statement of claim allege that there are misrepresentations or false representations made by the first respondent to consumers in respect of contracts that have arisen between the first respondent and its consumers from 2006 “to current”.
The allegations in paragraph 1 of the amended statement of claim are ill formed and not well particularised but the basal allegation in paragraph 1.1(e) is that, because of a substantial amount of false representations, the Court is asked to infer that the first respondent’s false representations form an integral part of its business model and every contract entered into between the first respondent and one of its customers is “tainted with a false representation”.
The claim against the second respondent alleges that he is a person who has carried on and carries on an internet…

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: [2012] FMCA 1128
Decision Date: 25 September 2012

CaseChat Overview and Summary

In the Federal Magistrates Court, Gordon Craven sued Ready Flowers Pty Ltd and Gary Eryll Roy Owen over alleged breaches of consumer protection laws in an online flower sales business. Craven alleged that the respondents made misleading representations to consumers, including about the description of goods, delivery times, and customer satisfaction guarantees. The respondents denied liability, claiming that any alleged breaches occurred after Ready Flowers Pty Ltd was sold to a Hong Kong company in February 2009. Craven argued that the respondents should be estopped from denying they were the business operators because consumers reasonably assumed they were dealing with an Australian company. The court found that there was no estoppel by convention because there was no conventional basis on which consumers dealt with the respondents, and the evidence showed that the Hong Kong company had been operating the business since the sale. The court concluded that the pleas in the defence were valid and that the respondents were not liable for any conduct after the sale date.

The final orders of the court were that the pleas in paragraphs 4(c) and 4(e) and paragraph 7 of the defence were upheld. To the extent that the business was sold, with effect from 1 February 2009, any representations or conduct relied upon after that date was not conduct for which the first respondent was responsible.

Orders