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Ireland v WG Riverview Pty Ltd

Ireland v WG Riverview Pty Ltd

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Case Copied 20 December 2019 48 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ireland v WG Riverview Pty Ltd [2019] NSWCA 307
Hearing dates: 14 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Bell ACJ at [1];
Macfarlan JA at [36];
Barrett AJA at [91]
Decision:
(1)   Allow the appeal.
(2)   Set aside the judgment entered, and the costs order made, at first instance on 26 March 2019.
(3)   Order that the respondent pay the appellants’ costs at first instance and on appeal.
(4) Direct that the respondent have a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.

Catchwords:
TRADE PRACTICES – misleading or deceptive conduct – sale of bull – auction catalogue – incorrect description of bull’s sire – disclaimer by vendor of correctness of information included in auction catalogue – proper characterisation of misleading or deceptive conduct – whether statement as to bull’s sire was one of fact or belief
TRADE PRACTICES – damages for misleading or deceptive conduct – damages awarded for difference between stud and commercial cattle value of subject bull’s progeny – whether primary judge awarded damages for expectation loss
Legislation Cited: Competition and Consumer Act 2010 (Cth), sch 2
Crimes Act 1900 (NSW), s 323(a)
Suitors’ Fund Act 1951 (NSW)
Cases Cited: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1
Bateman v Slatyer (1987) 71 ALR 553
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12
Council of the City of Sydney v Goldspar Pty Limited [2004] FCA 568 at [145]; (2004) 62 IPR 274
Forrest v Australian Securities and Investment Commission (2012) 247 CLR 486; [2012] HCA 39
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 88; [1984] FCA 167
Marks v GIO Australia Holdings (1998) 196 CLR 494; [1998] HCA 69
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44
Peter Anthony Thompson & Robyn Lesley Thompson v Ice Creameries of Australia Pty Ltd & David Alan Atchison [1998] FCA 54
Pyrotek Pty Ltd v Ausco Industries Pty Ltd (1992) ASC 56-131; (1992) ATPR (Digest) 46-085
R v Dookheea (2017) 262 CLR 402; [2017] HCA 36
Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No 3) (2011) 281 ALR 705; [2011] FCA 846
The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; [1992] FCA 962
Vasilevski v R [2019] NSWCCA 277
Weatherill v Bartlett [2017] NSWCA 175
Texts Cited: C Lockhart, The Law…

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: [2019] NSWCA 307
Decision Date: 20 December 2019

CaseChat Overview and Summary

The appeal in *Ireland v WG Riverview Pty Ltd* concerned a dispute arising from the sale of a bull at auction. The appellants, the vendors, appealed a judgment entered against them in favour of the respondent, the purchaser, who alleged misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth). The core of the respondent's claim was that the auction catalogue contained an incorrect description of the bull's sire, which was a material misrepresentation.

The primary legal issues before the court were whether the statement regarding the bull's sire constituted misleading or deceptive conduct, and if so, what damages were appropriately recoverable. Specifically, the court had to consider whether the statement was one of fact or belief, and how to properly characterise the damages awarded by the primary judge, particularly in relation to expectation loss and the difference in value between stud and commercial cattle for the bull's progeny. The presence of a disclaimer in the auction catalogue regarding the accuracy of information was also a significant factor.

The Court of Appeal allowed the appeal, setting aside the judgment and costs order made at first instance. The court reasoned that the statement as to the bull's sire was not a representation of fact but rather an expression of belief, particularly in light of the disclaimer provided by the vendor. This characterisation meant that the conduct did not amount to misleading or deceptive conduct under the relevant legislation. Consequently, the respondent was not entitled to damages. The court ordered that the respondent pay the appellants' costs at first instance and on appeal, and directed that the respondent have a certificate under the *Suitors’ Fund Act 1951* (NSW), if qualified.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside the judgment entered, and the costs order made, at first instance on 26 March 2019.

(3) Order that the respondent pay the appellants’ costs at first instance and on appeal.

(4) Direct that the respondent have a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.

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.

Medium Neutral Citation:	Ireland v WG Riverview Pty Ltd [2019] NSWCA 307
Hearing dates:	14 November 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Before:	Bell ACJ at [1]; Macfarlan JA at [36]; Barrett AJA at [91]
Decision:	(1) Allow the appeal. (2) Set aside the judgment entered, and the costs order made, at first instance on 26 March 2019. (3) Order that the respondent pay the appellants’ costs at first instance and on appeal. (4) Direct that the respondent have a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.
Catchwords:	TRADE PRACTICES – misleading or deceptive conduct – sale of bull – auction catalogue – incorrect description of bull’s sire – disclaimer by vendor of correctness of information included in auction catalogue – proper characterisation of misleading or deceptive conduct – whether statement as to bull’s sire was one of fact or belief TRADE PRACTICES – damages for misleading or deceptive conduct – damages awarded for difference between stud and commercial cattle value of subject bull’s progeny – whether primary judge awarded damages for expectation loss
Legislation Cited:	Competition and Consumer Act 2010 (Cth), sch 2 Crimes Act 1900 (NSW), s 323(a) Suitors’ Fund Act 1951 (NSW)
Cases Cited:	Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 Bateman v Slatyer (1987) 71 ALR 553 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; [2000] HCA 12 Council of the City of Sydney v Goldspar Pty Limited [2004] FCA 568 at [145]; (2004) 62 IPR 274 Forrest v Australian Securities and Investment Commission (2012) 247 CLR 486; [2012] HCA 39 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 88; [1984] FCA 167 Marks v GIO Australia Holdings (1998) 196 CLR 494; [1998] HCA 69 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44 Peter Anthony Thompson & Robyn Lesley Thompson v Ice Creameries of Australia Pty Ltd & David Alan Atchison [1998] FCA 54 Pyrotek Pty Ltd v Ausco Industries Pty Ltd (1992) ASC 56-131; (1992) ATPR (Digest) 46-085 R v Dookheea (2017) 262 CLR 402; [2017] HCA 36 Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No 3) (2011) 281 ALR 705; [2011] FCA 846 The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; [1992] FCA 962 Vasilevski v R [2019] NSWCCA 277 Weatherill v Bartlett [2017] NSWCA 175
Texts Cited:	C Lockhart, The Law…