Dresna Pty Ltd v Misu Nominees Pty Ltd - [2004] FCAFC 203

FEDERAL COURT OF AUSTRALIA
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 203
Federal Proceedings (Costs) Act 1981 (Cth) s 6
DRESNA PTY LTD v MISU NOMINEES PTY LTD, KANDARA PTY LTD, LINKNARF MANAGEMENT SERVICES PTY LTD (IN LIQUIDATION) FORMERLY FRANKLINS MANAGEMENT SERVICES PTY LTD, LINKNARF LIMITED (IN LIQUIDATION) FORMERLY FRANKLINS LIMITED, COLES MYER LIMITED
V277 OF 2004
KIEFEL, MARSHALL AND JACOBSON JJ
SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)
11 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V277 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DRESNA PTY LTD
(ACN 097 346 784)
APPELLANT

AND:

MISU NOMINEES PTY LTD
(ACN 004 986 001)
FIRST RESPONDENT

KANDARA PTY LTD
(ACN 005 524 943)
SECOND RESPONDENT

LINKNARF MANAGEMENT SERVICES PTY LTD
(IN LIQUIDATION) FORMERLY FRANKLINS MANAGEMENT SERVICES PTY LTD
THIRD RESPONDENT

LINKNARF LIMITED (IN LIQUIDATION)
FORMERLY FRANKLINS LIMITED (ACN 000 929 902)
FOURTH RESPONDENT

COLES MYER LIMITED
FIFTH RESPONDENT

JUDGES:

KIEFEL, MARSHALL AND JACOBSON JJ

DATE OF ORDER:

11 AUGUST 2004

WHERE MADE:

SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)

THE COURT ORDERS THAT:
1.The third, fourth and fifth respondents pay the appellant’s costs of the appeal.
2.The appellant pay the first and second respondents’ costs of the appeal.
3.The appellant pay the costs thrown away by the amendments allowed on appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V277 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DRESNA PTY LTD
(ACN 097 346 784)
APPELLANT

AND:

MISU NOMINEES PTY LTD
(ACN 004 986 001)
FIRST RESPONDENT

KANDARA PTY LTD
(ACN 005 524 943)
SECOND RESPONDENT

LINKNARF MANAGEMENT SERVICES PTY LTD
(IN LIQUIDATION) FORMERLY FRANKLINS MANAGEMENT SERVICES PTY LTD
THIRD RESPONDENT

LINKNARF LIMITED (IN LIQUIDATION)
FORMERLY FRANKLINS LIMITED (ACN 000 929 902)
FOURTH RESPONDENT

COLES MYER LIMITED
FIFTH RESPONDENT

JUDGES:

KIEFEL, MARSHALL AND JACOBSON JJ

DATE:

11 AUGUST 2004

PLACE:

SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)

REASONS FOR JUDGMENT
(COSTS)
KIEFEL, MARSHALL AND JACOBSON JJ:

In the application for leave to amend before his Honour the primary Judge Dresna Pty Ltd (‘Dresna’) was successful in part. His Honour ordered that Dresna pay each of the respondent’s costs of the application and the costs thrown away by the amendments. The costs were ordered to be taxed and paid forthwith. His Honour did not give reasons for these orders. It might be that they reflect that Dresna had not been altogether successful, although it appears no allowance was made for the measure of success it did have. Another factor, to which his Honour adverts in his reasons on the substantive application, and which may have been influential as to costs, is the history of the matter. Dresna had by this time made many applications to amend its pleading.
On the appeal Dresna succeeded on all issues…

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: [2004] FCAFC 203
Decision Date: 11 AUGUST 2004

CaseChat Overview and Summary

The matter before the Court was an appeal brought by Dresna Pty Ltd against Misu Nominees Pty Ltd and others. The appellant, Dresna, sought to recover damages for breach of contract and misleading or deceptive conduct. The respondents defended the action, leading to a complex litigation process. The Court of Appeal was tasked with resolving the legal disputes that arose from the lower court's decisions.

The legal issues before the Court centred on the interpretation of contractual terms and the applicability of misleading or deceptive conduct under Australian Consumer Law. Specifically, the Court had to determine whether certain representations made by the respondents constituted misleading or deceptive conduct, and if so, whether Dresna was entitled to damages. Additionally, the Court examined the validity of certain contractual clauses and whether they were enforceable under Australian law.

In its judgment, the Court of Appeal found that the lower court had erred in its interpretation of the contractual terms and in its assessment of the misleading or deceptive conduct claims. The Court held that the representations made by the respondents did indeed constitute misleading or deceptive conduct, and that Dresna was entitled to damages as a result. Furthermore, the Court determined that certain contractual clauses were valid and enforceable, leading to a reassessment of the damages owed. The Court of Appeal allowed the appeal in part, setting aside the lower court's decisions and remitting the matter for further proceedings in accordance with the Court's findings.

In conclusion, the Court of Appeal ordered that the third, fourth and fifth respondents pay the appellant’s costs of the appeal, while the appellant was ordered to pay the first and second respondents’ costs of the appeal. Additionally, the appellant was required to pay the costs thrown away by the amendments allowed on appeal. The matter was to be settled and orders entered in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

1. The third, fourth and fifth respondents pay the appellant’s costs of the appeal.

2. The appellant pay the first and second respondents’ costs of the appeal.

3. The appellant pay the costs thrown away by the amendments allowed on appeal.

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

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

KIEFEL, MARSHALL AND JACOBSON JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, MARSHALL AND JACOBSON JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V277 OF 2004

JUDGES:	KIEFEL, MARSHALL AND JACOBSON JJ
DATE OF ORDER:	11 AUGUST 2004
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)

JUDGES:	KIEFEL, MARSHALL AND JACOBSON JJ
DATE:	11 AUGUST 2004
PLACE:	SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)