FEDERAL COURT OF AUSTRALIA
Harvard Nominees Pty Ltd v Nicoletti [2022] FCAFC 179
Appeal from: Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105 File number: WAD 59 of 2022 Judgment of: BANKS-SMITH, COLVIN AND O'SULLIVAN JJ Date of judgment: 8 November 2022 Catchwords: CONSUMER LAW - where on remitter primary judge found that first and second respondents were liable to pay damages arising from loss under the Australian Consumer Law - where primary judge held that the remitter did not disturb first instance findings as to the third respondent and therefore did not order damages against him - where appellant alleges that the primary judge erred in construing the nature and terms of the remittal - where the primary judge properly construed the reasons and orders of the Full Court - appeal dismissed Cases cited: Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604
Harvard Nominees Pty Ltd v Tiller (No 4) [2022] FCA 105
Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229
Re The Spanish Club Ltd [2015] NSWSC 1858
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 110 Date of last submissions: 29 August 2022 (Appellant)
12 September 2022 (Third Respondent)Date of hearing: 24 August 2022 Counsel for the Applicant: Mr RC Newlinds SC with Mr TM Rogan Solicitor for the Applicant: Hotchkin Hanly Lawyers Counsel for the Third Respondent: Mr MD Cuerden SC with Mr AM Freund Solicitor for the Third Respondent: Lawton Gillon ORDERS
WAD 59 of 2022 BETWEEN: HARVARD NOMINEES PTY LTD (ACN 008 761 037)
Applicant
AND: GIOVANNI BASILIO NICOLETTI
Third Respondent
ORDER MADE BY:
BANKS-SMITH, COLVIN AND O'SULLIVAN JJ
DATE OF ORDER:
8 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant do pay the third respondent's costs to be assessed on a lump sum basis by a registrar if not agreed.
3.There be liberty to the appellant to apply within 14 days to vary the costs order should it maintain that there should be any different order as to costs.
4.The liberty to apply shall be exercised by filing and serving any submission of no more than three pages stating the costs order sought and the contentions advanced as to why the order should be made together with any affidavit in support.
5.If the liberty is exercised, then the third respondent shall file and serve any submission in response of no more than three pages together with any affidavit.
6.Unless otherwise ordered, any issue as to whether the costs order should be varied shall be determined on the papers.
THE COURT NOTES THAT:
A.These orders do not affect the costs and other consequences of the notices of discontinuance of the whole of the appeal as against each of the first and second respondents.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Harvard Nominees Pty…
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- Case
- [2022] FCAFC 179
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation of the remittal by the Full Court and whether the primary judge correctly applied it in his decision. Specifically, the court had to determine if the primary judge erred in his construction of the remittal and whether the findings and orders against the respondents were appropriate. The court also had to consider the nature of the loss claimed by Harvard and whether it was causally linked to the misleading conduct alleged.
The court found that the primary judge properly construed the remittal from the Full Court and upheld the findings against the first and second respondents. It was held that the primary judge's reasoning was sound in finding that Harvard did not suffer any loss or damage due to the misleading conduct. The court emphasised that the state of affairs before the alleged misleading conduct meant there was no ability to give vacant possession, and entering into the New Leases did not constitute loss or damage in itself. Consequently, the appeal was dismissed, and the primary judge's decision was affirmed.
The court made several orders, including dismissing the appeal, directing the appellant to pay the third respondent's costs, and granting the appellant liberty to apply to vary the costs order if it believed a different order should be made. The orders also noted that the costs and other consequences of the notices of discontinuance of the appeal as against the first and second respondents were unaffected.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant do pay the third respondent's costs to be assessed on a lump sum basis by a registrar if not agreed.
3. There be liberty to the appellant to apply within 14 days to vary the costs order should it maintain that there should be any different order as to costs.
4. The liberty to apply shall be exercised by filing and serving any submission of no more than three pages stating the costs order sought and the contentions advanced as to why the order should be made together with any affidavit in support.
5. If the liberty is exercised, then the third respondent shall file and serve any submission in response of no more than three pages together with any affidavit.
6. Unless otherwise ordered, any issue as to whether the costs order should be varied shall be determined on the papers.
THE COURT NOTES THAT:
A. These orders do not affect the costs and other consequences of the notices of discontinuance of the whole of the appeal as against each of the first and second respondents.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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