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Gel Custodians Pty Ltd v Dewar

Gel Custodians Pty Ltd v Dewar

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Case Copied 23 May 2014 58 min read

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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)…

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: [2014] WASC 177
Decision Date: 23 MAY 2014

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