Fister & Anor v King & Anor - [2022] HCATrans 186

[2022] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 2022

B e t w e e n -
KAREN AMANDA FISTER
First Applicant
CHRISTOPHER ROBERT HALL
Second Applicant
and
ANDREW ROBERT KING
First Respondent
JODI LEANE KING
Second Respondent
Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 1.30 PM

____________________

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR M.A. JONSSON, KC appears for the applicants. (instructed by Murray & Lyons Solicitors)

MS W.A. HARRIS, KC appears with MS J.E. MOIR for the respondents. (instructed by Preston Law)

KIEFEL CJ: Yes, Mr Jonsson.

MR JONSSON: Thank you, your Honours. The first of the areas that provoke this application can be seen in the first sentence of paragraph [33] of the reasons of Justice Davis in the court below at page 67 of the application book, read with the apparently explanatory observations that immediately follow in that paragraph. It is difficult, with respect, to reconcile the suggested mutuality with what follows in that paragraph, the arrangements described in the balance of the paragraph being essentially, I would submit, reciprocal as distinct from mutual, and I will develop that proposition.

To give it some further context, may I take your Honours, please, to the circumstances of the broader arrangement set out in the reasons of the learned judge at first instance at application book page 7, particularly paragraphs [7] through [10]. Could I just please emphasise that the applicants acquired the subject property in the applicants’ names, as recorded in paragraph [8], and with moneys borrowed by the applicants alone, as noted in paragraph [10], save to the extent of the deposit which was found to have been sourced by the first named respondent from a relative, which is referred to in paragraph [9], read with paragraphs [229] and [230] at page 38, and repayment of which the learned primary judge effectively credited to the respondents, which your Honours will see in paragraphs [123] through [128].

The manifest objectively intended benefits for the respondents in the arrangements, as found by the learned primary judge, were that the respondents would live in the property as their home, and with the associated intention that the respondents’ possession would be exclusive. That much was emphasised by the second named respondent having . . . . . early in the arrangement into a tenancy agreement with the applicants. The respondents criticise my clients’ reliance upon the tenancy agreement, but there was an explicit finding that a general tenancy agreement was entered into, which is recorded at page 8 of the application book, paragraph [18]; also at page 22, in paragraph [111].

The female respondent was said to have done so for her own peace of mind, as recorded by the learned primary judge in…

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: [2022] HCATrans 186
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a dispute between the Fisters (appellants) and King & Anor (respondents). The core of the disagreement revolved around the respondents' claim for damages arising from alleged breaches of contract and misleading or deceptive conduct by the appellants in relation to a property development.

The High Court was required to determine whether the primary judge had erred in finding that the appellants had breached their contractual obligations and engaged in misleading or deceptive conduct. Specifically, the court considered whether the appellants had failed to deliver the property in accordance with the contract and whether representations made about the property's completion and features constituted misleading or deceptive conduct under the Australian Consumer Law.

In its reasoning, the High Court analysed the terms of the contract and the evidence presented regarding the state of the property at the time of completion. The court applied principles of contract law concerning the essential terms of an agreement and the standard of performance required. Furthermore, the court considered the elements of misleading or deceptive conduct, focusing on whether the representations made by the appellants were factually inaccurate or likely to mislead a reasonable consumer in the circumstances. The court found that the primary judge had correctly identified breaches of contract and misleading or deceptive conduct.

The High Court dismissed the appeal, upholding the decision of the primary judge and affirming the respondents' entitlement to damages.

Orders