Gel Custodians Pty Ltd v Dewar

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GEL CUSTODIANS PTY LTD -v- DEWAR [2014] WASC 177

CORAM:   ACTING MASTER GETHING

HEARD:   29 APRIL 2014

DELIVERED          :   23 MAY 2014

FILE NO/S:   CIV 1909 of 2010

BETWEEN:   GEL CUSTODIANS PTY LTD (ACN 118 374 155)

Plaintiff

AND

CORINNA EVANGELINE DEWAR
Defendant

Catchwords:

Civil procedure - Summary judgment - Agency - Misleading conduct - Unconscionable conduct

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 12BAB, s 12CA, s 12DA, s 12GH, s 12GM
Rules of the Supreme Court 1971 (WA), O 14

Result:

Judgment awarded

Category:    B

Representation:

Counsel:

Plaintiff:     Mr N White

Defendant:     In person

Solicitors:

Plaintiff:     Norton Rose Fulbright Australia

Defendant:     In person

Case(s) referred to in judgment(s):

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209

Alvaro v Amaral [2013] WASCA 16

Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332

Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51

Australian Securities and Investments Commission v Maxwell (2006) 59 ASCR 373

Bank of Western Australia v Stein [2005] WASC 43

Barrick Gold of Australia Ltd v F L Smidth Inc [2007] WASC 186

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256

Brian Fletcher as Trustee of the Brian Fletcher Family Trust v St George Bank Ltd [No 2] [2011] WASC 277

Cayne v Global Natural Resources plc [1984] 1 All ER 225

Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447

Commonwealth Bank of Australia v Finding [2001] 1 Qd R 168

Compaq Computer Australia Ltd v Merry (1998) 157 ALR 1

Duckworth v Commonwealth Bank of Australia [2013] WASCA 24

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Eng Mee Yong v Letchumanan [1980] AC 331

Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 25; (1964) 112 CLR 125

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Golby v Commonwealth Bank of Australia (1996) 72 FCR 134

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161

Jacka Nominees Pty Ltd (in liq) v Edwards Karwacki Smith & Co Pty Ltd (Unreported, WASC, Library No 9200989, 12 October 1992)

Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533

Lisciandro v Official Trustee in Bankruptcy [1995] FCA 1527; (1995) ATPR 40,897

M R & R C Smith Pty Ltd t/as Ultra Tune (Osborne Park)…

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Details
Case
[2014] WASC 177
Decision Date

CaseChat Overview and Summary

Gel Custodians Pty Ltd sought summary judgment against Dewar for breach of agency and misleading or deceptive conduct. The Federal Court of Australia was tasked with determining whether Gel Custodians Pty Ltd could succeed in its application for summary judgment on the basis of the alleged breaches of agency, misleading conduct, and unconscionable conduct.

The primary legal issues the court had to decide were whether there was an agency relationship between the parties, whether the conduct of Dewar constituted misleading or deceptive conduct, and whether the conduct of Dewar was unconscionable. The court also needed to consider whether the allegations were sufficient to justify the granting of summary judgment.

The court found that there was an agency relationship between the parties. It also found that Dewar had engaged in misleading or deceptive conduct and that his conduct was unconscionable. The court concluded that the conduct of Dewar was so egregious that it warranted the granting of summary judgment. The court further found that the allegations were sufficient to justify the granting of summary judgment, and it dismissed Dewar's defence. The court then granted summary judgment in favour of Gel Custodians Pty Ltd and ordered Dewar to pay damages and costs.

Orders

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Background

Background to the litigation

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Evidence Before The Court

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