TRADE PRACTICES – Misleading and deceptive conduct – whether written and oral representations were made – by whom representations made – whether representations misleading and deceptive – whether representations as to future matters – whether reasonable grounds for future matters representations – contraventions – involvement in contraventions – damages for trade practices breaches – damages for lost opportunity – rescission of loan agreement.
Allen, Allen’s Dictionary of English Phrases (Penguin: London, 2006) Heydon, Cross on Evidence (Seventh Australian Edition), (Chatswood: LexisNexis Butterworths, 2004) The Shorter Oxford English Dictionary on Historical Principles, Volume 1 (Oxford: Oxford University Press, 1973)
First Applicant:
KLAGES PTY LIMITED
Second Applicant:
ADAM KLAGES
Third Applicant:
SCHAFER HOLDINGS PTY LTD
Fourth Applicant:
CHRISTOPHER JOHN MOODY AS TRUSTEE FOR THE MOODY FAMILY TRUST
First Respondent:
DUNCAN ALLISTER WALKER
Second Respondent:
SHERINGHAM WA PTY LTD AS TRUSTEE FOR THE WALKER FAMILY TRUST
File Number:
PEG 260 of 2005
Judgment of:
Lucev FM
Hearing date:
12, 13 & 14 December 2006
Date of Last Submission:
14 December 2006
Delivered at:
Perth
Delivered on:
10 December 2007
REPRESENTATION
Applicants:
Mr D C Robinson
First Respondent:
Mr D A Walker in person
Second Respondent:
No appearance
ORDERS
The Applicants to prepare, file and serve a Minute of Proposed Orders to accord with these the Reasons for Judgment delivered 10 December 2007, by 4:00pm on 14 December 2007.
(a) The Applicants and Respondents are to discuss the Minute of Proposed Orders by 4:00pm on 18 December 2007 and use their best endeavours to reach agreement on the terms of the Minute of Proposed Orders.
(b)If the Applicants and Respondents reach agreement on the terms of the Minute of Proposed Orders that Minute must be signed by the Applicants and Respondents and filed as a draft consent order under rule 13:04 of…
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.
Continue reading Klages v Walker
Sign in free to access the full text
Details
AGLC
Klages v Walker [2007] FMCA 2056
Case
[2007] FMCA 2056
Decision Date
CaseChat Overview and Summary
The applicants, Klages, sought orders for the freezing of the respondents' property and for an interlocutory injunction against the respondents in the Federal Magistrates Court. The applicants alleged that the respondents, Walker, had engaged in fraudulent activities and had obtained assets through unlawful means. The applicants sought to prevent the respondents from disposing of their assets and to recover the proceeds of their alleged fraud.
The court was required to determine whether the applicants had established a serious question to be tried in relation to the respondents' alleged fraudulent activities and whether the applicants had satisfied the criteria for the grant of interlocutory injunctive relief. The court was also required to consider whether the applicants had demonstrated a real risk of dissipation of assets and whether the applicants had established a likelihood of success on the merits of their claims.
The court found that the applicants had established a serious question to be tried in relation to the respondents' alleged fraudulent activities. The court also found that the applicants had satisfied the criteria for the grant of interlocutory injunctive relief and that there was a real risk of dissipation of assets. The court held that the applicants had demonstrated a likelihood of success on the merits of their claims and that it was just and convenient to grant the orders sought by the applicants. The court made orders for the freezing of the respondents' property and for an interlocutory injunction against the respondents.
Orders
Orders of the court
1.
The Applicants to prepare, file and serve a Minute of Proposed Orders to accord with these the Reasons for Judgment delivered 10 December 2007, by 4:00pm on 14 December 2007.
2.
(a) The Applicants and Respondents are to discuss the Minute of Proposed Orders by 4:00pm on 18 December 2007 and use their best endeavours to reach agreement on the terms of the Minute of Proposed Orders.
(b) If the Applicants and Respondents reach agreement on the terms of the Minute of Proposed Orders that Minute must be signed by the Applicants and Respondents and filed as a draft consent order under rule 13:04 of the Federal Magistrates Court Rules, 2001 (Cth).
3.
Otherwise, the matter is adjourned to 10:15am on 20 December 2007.