Duxbury v Pierce - [2010] FCA 203

FEDERAL COURT OF AUSTRALIA
Duxbury v Pierce [2010] FCA 203

Citation: Duxbury v Pierce [2010] FCA 203

Parties: BRUCE LYALL DUXBURY, PAUL DAMIAN KINNANE, GLENN STUART BLAKISTON, SIMON BRETT BLAKISTON, B. DIMENSIONAL PTY LTD (ACN 094 847 793) and JAMES PATRICK EAVES v ROGER BRIAN PIERCE and DAVID COLIN HUGHEY

File number(s): VID 991 of 2007

Judge: MARSHALL J

Date of judgment: 12 March 2010

Catchwords: TRADE PRACTICES – quantum of loss or damage under s52 – apportionment of loss or damage – interest on loss or damage

Legislation: Trade Practices Act 1974 (Cth) ss 52, 82, 87, 87CB, 87CC

Cases cited: Duxbury v Pierce [2009] FCA 367
Duxbury v Pierce [2009] FCAFC 164
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109

Date of hearing: 5 March 2010

Date of last submissions: 5 March 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 36

Counsel for the Applicants: Mr S Minahan

Solicitor for the Applicants: Hicks Oakley Chessell Williams

First Respondent: Mr R Pierce appeared for himself

Second Respondent: There was no appearance by the Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 991 of 2007

BETWEEN:
BRUCE LYALL DUXBURY
First Applicant

PAUL DAMIAN KINNANE
Second Applicant

GLENN STUART BLAKISTON
Third Applicant

SIMON BRETT BLAKISTON
Fourth Applicant

B. DIMENSIONAL PTY LTD (ACN 094 847 793)
Fifth Applicant

JAMES PATRICK EAVES
Sixth Applicant

AND:
ROGER BRIAN PIERCE
First Respondent

DAVID COLIN HUGHEY
Second Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

12 MARCH 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Subject to Order 3 below, pursuant to s 82 of the Trade Practices Act 1974 (Cth):
(a)the respondents pay the first applicant $217,048.30;
(b)the respondents pay the sixth applicant $293,232.72;
(c)the first respondent pay the second applicant $195,498.00;
(d)the second respondent pay the second applicant $55,498.00;
(e)the first respondent pay the third, fourth and fifth applicants $281,491.00;
(f)the second respondent pay the third, fourth and fifth applicants $70,831.00.

2.The respondents pay the applicants’ costs of the proceeding, including reserved costs, to be taxed in default of agreement.
3.Pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth), the respondents pay interest on the sums in Order 1 as follows:

(a)to the first applicant
(i)by the first respondent – 6.5% from 1 February 2004 to 24 January 2005;
(ii)by the second respondent – 6.5% from 1 February 2004 to the date of this order.

(b)to the second applicant
(i)by the first respondent – 6.5% from 9 June 2004 to 15 September 2004;
(ii)by the second respondent – 6.5% from 9 June 2004 to the date of this order.

(c)to the third, fourth and fifth applicants
(i)by the first respondent – 6.5% from 26 August 2004 to 14 December 2004;
(ii)by the second respondent – 6.5% from 26 August 2004 to the date of this order.

(d)to the sixth applicant
(i)by the first respondent – 6.5% from 5 November 2004 to 24 December 2004;

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.

Continue reading Duxbury v Pierce

Details

AGLC: Duxbury v Pierce [2010] FCA 203
Case: [2010] FCA 203
Decision Date

CaseChat Overview and Summary

This case involved a claim by Bruce Lyall Duxbury, Paul Damian Kinnane, Glenn Stuart Blakiston, Simon Brett Blakiston, B. Dimensional Pty Ltd, and James Patrick Eaves against Roger Brian Pierce and David Colin Hughey for losses suffered as a result of the respondents' breach of s 52 of the Trade Practices Act 1974 (Cth). The court was required to determine the quantum of loss suffered by the applicants and apportion liability between the respondents.

The court found that the applicants had suffered loss as a result of the respondents' conduct, including misrepresentations and failure to disclose important information about the financial health of the joint venture. The court assessed the losses for each applicant and determined the amount of compensation to be awarded. The court also considered the issue of apportionment of liability between the two respondents, finding that they were both liable for the full amount of the loss suffered by the applicants.

The court ordered the respondents to pay compensation to each of the applicants, with the amounts varying depending on the specific losses incurred by each applicant. The court also ordered the respondents to pay interest on the compensation amounts, at a rate of 6.5%, and the applicants' costs of the proceeding. The court's orders were made pursuant to s 82 of the Trade Practices Act and s 51A of the Federal Court of Australia Act 1976 (Cth).

In summary, the court found the respondents liable for the full amount of the loss suffered by the applicants and ordered them to pay compensation, interest, and costs. The court's decision provides guidance on the assessment of loss and apportionment of liability in cases involving breaches of s 52 of the Trade Practices Act.

Orders