Gobbert v Elders Rural Services Australia Limited - [2017] QDC 219

DISTRICT COURT OF QUEENSLAND

CITATION:

Gobbert & Ors v Elders Rural Services Australia Limited & Anor [2017] QDC 219

PARTIES:

JASON STANLEY GOBBERT, ALEXANDER DEAN GOBBERT AND STANLEY MORTON GOBBERT trading as GOBBERT BROS
(Plaintiffs)

v

ELDERS RURAL SERVICES AUSTRALIA LIMITED ACN 004 045 121
(First Defendant)

and

RURAL BANK LIMITED ACN 083 938 416
(Second Defendant)

FILE NO/S:

626 of 2016

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24, 25 May 2017 and 17 August 2017

JUDGE:

Kefford DCJ

ORDER:

The Plaintiffs’ Claim is dismissed.

The parties are to file and serve written submissions as to costs by 6 September 2017.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the plaintiffs applied for finance from the second defendant – where the first defendant was agent for the second defendant – where the plaintiffs claim that an employee of the first defendant impliedly represented that finance had been approved – where the second defendant had not approved finance – where the plaintiffs claim they suffered loss and damage because of misleading conduct arising out of the misrepresentation – whether an employee of the first defendant impliedly represented that finance had been approved – whether the plaintiffs relied on any such representation, to their disadvantage, in entering into the contract – whether the representation caused the loss

LEGISLATION:

Australian Securities and Investment Commission Act 2001 (Cth), s 12BA, s 12BB, s 12DA, s 12GF

CASES:

Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] FCA 502; [1991] ASC 56-107, applied

Amalgamated Television Services v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, applied

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, applied

Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592, applied

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, applied

Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042, applied

Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199, applied

Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68, followed

National Exchange Pty Ltd (ACN 006 079 974) v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 61 IPR 420, applied

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, applied

COUNSEL:

D J Pyle with S Forder for the Plaintiffs

N Ferrett for the First Defendant

B Porter QC for the Second Defendant

SOLICITORS:

Shine Lawyers for the Plaintiffs

Crawford Legal for the First Defendant

Dibbs Barker for the Second Defendant

TABLE OF CONTENTS
Introduction
The cause of action and issues in dispute
Assessment of witness credibility
Relevant principles with respect to misleading or…

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: [2017] QDC 219
Decision Date: 30 August 2017

CaseChat Overview and Summary

The plaintiffs, Gobbert, sought finance from Elders Rural Services Australia Limited (ERSA) and engaged with the first defendant, who was an agent for ERSA. The Gobberts alleged that an employee of the first defendant impliedly represented that their finance had been approved, despite ERSA not having approved the finance. They claimed they suffered loss and damage due to this misleading conduct. They argued the first defendant, by its employee’s actions, impliedly represented that finance had been approved, and they relied on this representation to their disadvantage, entering into a contract that caused them loss.

The legal issues before the court were whether the employee of the first defendant impliedly represented that finance had been approved, whether the Gobberts relied on any such representation to their disadvantage, and whether the representation caused the loss. The court had to determine the nature of the implied representation and its impact on the Gobberts’ decision to enter into the contract. The court also needed to assess whether the Gobberts’ loss was a direct result of the representation made by the employee of the first defendant.

The court found that the employee did not make an implied representation that finance had been approved. Even if such a representation had been made, the Gobberts would not have relied on it to their disadvantage because they had knowledge of the actual status of their application. The court concluded that the Gobberts' loss was not caused by any misleading conduct from the first defendant’s employee. Therefore, the plaintiffs’ claim was dismissed. The court ordered that written submissions regarding costs be filed and served by 6 September 2017.

Orders

Orders of the court

The Plaintiffs’ Claim is dismissed.

The parties are to file and serve written submissions as to costs by 6 September 2017.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gobbert & Ors v Elders Rural Services Australia Limited & Anor [2017] QDC 219
PARTIES:	JASON STANLEY GOBBERT, ALEXANDER DEAN GOBBERT AND STANLEY MORTON GOBBERT trading as GOBBERT BROS (Plaintiffs) v ELDERS RURAL SERVICES AUSTRALIA LIMITED ACN 004 045 121 (First Defendant) and RURAL BANK LIMITED ACN 083 938 416 (Second Defendant)
FILE NO/S:	626 of 2016
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	30 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23, 24, 25 May 2017 and 17 August 2017
JUDGE:	Kefford DCJ
ORDER:	The Plaintiffs’ Claim is dismissed. The parties are to file and serve written submissions as to costs by 6 September 2017.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the plaintiffs applied for finance from the second defendant – where the first defendant was agent for the second defendant – where the plaintiffs claim that an employee of the first defendant impliedly represented that finance had been approved – where the second defendant had not approved finance – where the plaintiffs claim they suffered loss and damage because of misleading conduct arising out of the misrepresentation – whether an employee of the first defendant impliedly represented that finance had been approved – whether the plaintiffs relied on any such representation, to their disadvantage, in entering into the contract – whether the representation caused the loss
LEGISLATION:	Australian Securities and Investment Commission Act 2001 (Cth), s 12BA, s 12BB, s 12DA, s 12GF
CASES:	Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] FCA 502; [1991] ASC 56-107, applied Amalgamated Television Services v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, applied Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, applied Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592, applied Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, applied Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042, applied Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199, applied Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68, followed National Exchange Pty Ltd (ACN 006 079 974) v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 61 IPR 420, applied Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, applied
COUNSEL:	D J Pyle with S Forder for the Plaintiffs N Ferrett for the First Defendant B Porter QC for the Second Defendant
SOLICITORS:	Shine Lawyers for the Plaintiffs Crawford Legal for the First Defendant Dibbs Barker for the Second Defendant