Dibble, D. v Aidan Nominees Pty Ltd - [1986] FCA 178

Re: DAVID DIBBLE and TERESA DIBBLE
And: AIDAN NOMINEES PTY LTD and ERIC HAMER
No. WA G51 of 1985
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.

CATCHWORDS

Trade Practices - claims under s.52 of Trade Practices Act 1974 - misleading or deceptive conduct - newspaper advertisement - oral representations as to availability of facilities, right to advertise and exclusivity of menu in food market - underlease entered into with respondent company - contents of document contrary to alleged misrepresentations - failure by applicants to read underlease - relief granted.

Trade Practices Act 1974 ss. 52(1), 53A, 84(2), 87(2)

Taco Co. of Australia v. Taco Bell Pty Puxu Pty Ltd v. Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93

Hornsby Building Information Centre Pty Ltd v. Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216

Plant v. Duralla Pty Ltd (1983) 5 ATPR 44,939

Brown and Another v. Jam Factory Pty Ltd and Another (1981) 35 ALR 79

Mister Figgins Pty Ltd v. Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 at 55

HEARING

PERTH

#DATE 16:4:1986

ORDER

The respondents pay to the applicants damages in the sum of $4,957.88.

The Deed of Underlease dated the 25th March 1985 be declared void ab initio.

The respondents pay the applicants costs of the application to be taxed.

The respondents' cross-claim be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicants in this matter seek damages arising out of an agreement with the respondent company (entitled 'Offer to Lease') entered into on 19 March 1985 whereby they agreed to lease a stall in a food market in Perth known as the Aidan City Centre Markets (the Market). They also seek an order for rescission of the agreement. The first respondent (the company) is sued as the lessor; the second respondent (Hamer) as the company's servant or agent being the person the applicants dealt with prior to their decision to carry on business from the stall and to commit themselves to a long term lease.

Whilst relief is also claimed at common law, as the case developed, the applicants cause of action has been founded on the Trade Practices Act 1974.
The essence of the applicants' case is that by reason of representations made which induced them to enter occupancy of the stall and long term liability for rent, the company engaged in misleading or deceptive conduct within the meaning of s.52(1) of the Act. Section 84(2) is called in aid to vest responsibility in the company on the basis that the conduct engaged in by Hamer is deemed also to have been engaged in by the company. It is also alleged against Hamer that he was directly and knowingly concerned in the contravention of s.52(1) by the company and thus a party to the contravention. The applicants also call in aid s.53A of the Act…

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: [1986] FCA 178
Decision Date: 16 APRIL 1986

CaseChat Overview and Summary

The Federal Court was presented with a dispute between Dibble and another party, Aidan Nominees Pty Ltd. The applicants, Dibble, sought relief for misleading or deceptive conduct by the respondents under section 52 of the Trade Practices Act 1974. The basis for the claim was a newspaper advertisement and oral representations made by the respondents regarding the availability of facilities, the right to advertise, and the exclusivity of the menu in a food market. The applicants entered into an underlease with the respondents, but the terms of the written agreement contradicted the alleged oral representations. The applicants did not read the underlease before signing it.

The central legal issue was whether the respondents had engaged in misleading or deceptive conduct by making oral representations that were not reflected in the written underlease agreement. The court had to determine if the applicants could rely on the oral representations and whether the respondents' conduct misled the applicants into signing a document that contradicted these representations. Additionally, the court needed to consider the applicants' failure to read the underlease before signing it and its impact on their claim.

The court found that the respondents did engage in misleading or deceptive conduct by making oral representations that were not upheld by the terms of the written underlease. The court declared the Deed of Underlease void ab initio due to the significant disparity between the oral representations and the written terms. The applicants were awarded damages for the misleading conduct, and the respondents were ordered to pay the applicants' costs. The respondents' cross-claim was dismissed.

The court ordered the respondents to pay the applicants $4,957.88 in damages, declared the Deed of Underlease void ab initio, and required the respondents to pay the applicants' costs of the application to be taxed. The respondents' cross-claim was dismissed. The settlement and entry of orders were dealt with in Order 36 of the Federal Court Rules.

Orders

Orders of the court

The respondents pay to the applicants damages in the sum of $4,957.88.

The Deed of Underlease dated the 25th March 1985 be declared void ab initio.

The respondents pay the applicants costs of the application to be taxed.

The respondents' cross-claim be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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