Jacara Pty Ltd v Auto-Bake Pty Ltd

FEDERAL COURT OF AUSTRALIA

Jacara Pty Ltd v Auto‑Bake Pty Ltd [1999] FCA 417

EVIDENCE – Admissibility – Misleading or deceptive conduct – Representations made prior to lease of shops – Similar fact evidence – Whether relevant – Whether evidence could affect assessment of probability that representations made – Whether significant probative value – Whether evidence should be excluded on discretionary grounds.

Evidence Act 1995 ss 55, 56, 87 and 135

Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119 considered
Sheldon v Sun Alliance Ltd (1989) 53 SASR 97 cited
Turner v Jenolan Investments Pty Ltd (1985) ATPR 40,571 considered
Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500 considered
Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 140 ALR 701 cited
Perry v The Queen (1984) 150 CLR 580 cited
Hoch v The Queen (1988) 165 CLR 292 cited
Boyce v Cafred Pty Ltd (1984) 4 FCR 367 cited
D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 100 ALR 468 cited
Drambo Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 1 August 1996) cited

JACARA PTY LTD v AUTO‑BAKE PTY LTD and PERPETUAL TRUSTEES WA LTD

VG 702 OF 1996

SUNDBERG J
15 APRIL 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 702 OF 1996

BETWEEN:

JACARA PTY LTD (ACN 005 876 479)
Applicant

AND:

AUTO-BAKE PTY LTD (ACN 004 460 333)
First Respondent

PERPETUAL TRUSTEES WA LTD (ACN 008 666 886)
Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	15 APRIL 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The motion notice of which was filed on 1 March 1999 be dismissed.

2.The applicant pay the second respondent’s costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 702 OF 1996

BETWEEN:

JACARA PTY LTD (ACN 005 876 479)
Applicant

AND:

AUTO-BAKE PTY LTD (ACN 004 460 333)
First Respondent

PERPETUAL TRUSTEES WA LTD (ACN 008 666 886)
Second Respondent

JUDGE:	SUNDBERG J
DATE:	15 APRIL 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. The applicant has sued the second respondent (“Perpetual”) for relief under Part VI of the Trade Practices Act 1974 arising out of representations alleged to have been made to its director, Ashley Williams, by Perpetual’s agent, Philippa Robertson , which it claims were misleading and deceptive and upon which it relied in entering into a lease of a shop in the Parkmore Shopping Centre from which to carry on business as a biscuit maker.

2. The representations alleged are these:

   ·On the completion of the extensions and renovations then being carried out at the Centre (“the redevelopment”) there would be a substantial increase in the number of customers attending the Centre

   ·Prior to the commencement of the redevelopment there had been approximately 125,000 customers who attended the Centre each week, but this number would rise by at least 50 to…