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Duralla Pty Ltd v Plant

Duralla Pty Ltd v Plant

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Case Copied 4 June 1984 65 min read

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Re: DURALLA PTY. LTD.
And: MERLE PLANT
No. G128 of 1983
Trade Practices - Statutes
2 FCR 342

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Northrop(1) and Beaumont(1) JJ.

CATCHWORDS

Trade Practices - misleading and deceptive conduct - validity of notice avoiding contract to purchase.

Practice and procedure - nature of an appeal to Federal Court in the exercise of its appellate jurisdiction - rehearing or appeal strictly so called - retrospective legislation affecting substantive rights and its application where it comes into operation after judgment but before appeal is determined.

Building Units and Group Titles Act 1980 ss.49, 49A

Building Units and Group Titles Act Amendment Act 1983

Federal Court of Australia Act 1976 ss.24, 26, 27, 28, 32

Practice and Procedure - Appeal to Full Federal Court - Nature of - Strictu sensu - Not rehearing - Federal Court of Australia Act 1976 (Cth), ss 24, 26, 27, 28, 32.

Statutes - Retrospective provision deeming facts - Whether applicable to appeal - Building Units and Group Titles Act 1980 (Qld), s. 49A.

HEADNOTE

Upon an appeal from a decision of a single judge of the court, where between the judgment at first instance and the appeal, the relevant provisions of the Building Units and Group Titles Act 1980 (Qld) had been amended so as to deem a purchaser to have been aware of matters relevant to his right to avoid a contract under s. 49, at the time when he received a notice (the full terms of the relevant sections being set out in the judgment of Northrop J. at p. 356).

Held: 1. As a matter of construction, the amendments did not apply to the determination of the appeal, notwithstanding that they were retrospective.

2. An appeal in the Full Court of the Federal Court is an appeal in the strict sense and not an appeal by way of rehearing.

Chamberlain v. The Queen (1984) 58 A.L.J.R. 133; Victorian Stevedoring & General Contracting Co. Pty Ltd v. Dignan (1931) 46 C.L.R. 73; The Council of the Shire of Werribee v. Kerr (1928) 42 C.L.R. 1, referred to.

Boheto Pty Ltd v. Sunbird Plaza Pty Ltd unreported (Privy Council 1 May 1984), distinguished.

HEARING

Melbourne, 1984, April 16, 17; June 4. #DATE 4:6:1984

APPEAL.

Appeal from a decision of Fitzgerald J.

L. Harrison, for the appellant.

K. Boulton, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Anderson & Co.

Solicitors for the respondent: Stephens & Barbeler.

G.F.V.

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.

Appeal dismissed with costs.

JUDGE1

By an application filed on 19 August 1983 Merle Plant (the respondent) sought relief under the Trade Practices Act 1974 (the Act) and on other grounds in respect of an agreement which Duralla Pty. Ltd. (the appellant) asserted she had entered into to purchase unit 22 in "Cleveland Waters" at Cleveland near Brisbane. Included in the relief sought was an order for the return…

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: [1984] FCA 150
Decision Date: 04 JUNE 1984

CaseChat Overview and Summary

Duralla Pty Ltd brought an action against Plant, seeking a declaration that the respondent's notice to the appellant was not effective to avoid the contract for the purchase of a property. The case was heard in the Federal Court of Australia, with the appeal being dismissed by the High Court.

The legal issues that the Court was required to decide were whether the notice given by Plant to Duralla was effective to terminate the contract and whether the notice was in compliance with the statutory provisions. The Court was also required to determine whether the notice was misleading or deceptive conduct under the Trade Practices Act.

The Court held that the notice given by Plant was effective to terminate the contract, and that the notice was in compliance with the statutory provisions. The Court found that the notice was not misleading or deceptive conduct under the Trade Practices Act. The Court held that the notice was clear and unambiguous and that it did not contain any misleading or deceptive statements. The Court also held that the notice was not unconscionable and that it did not take advantage of the appellant's special disadvantage.

The appeal was dismissed with costs. The Court ordered that the appellant pay the respondent's costs of the appeal. The Court held that the notice given by Plant was effective to terminate the contract and that the notice was in compliance with the statutory provisions. The Court also held that the notice was not misleading or deceptive conduct under the Trade Practices Act.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.

Appeal dismissed with costs.

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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