Latella, v L.J. Hooker Ltd - [1985] FCA 97

Re: VINCENZO LATELLA and DIEGO LATELLA
And: L.J. HOOKER LIMITED
No. G.54 of 1984
Trade Practices
(1985) ATPR para 40 - 555 / 5 FCR 146

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.(1)

CATCHWORDS

Trade Practices - advertisement by agent - False or misleading representation about use to which land may lawfully be put - Whether principal can recover damages from agent - Measure of damages under s.82.

Trade Practices Act 1974 - ss.53A, 82.

Trade Practices - False or misleading statement by vendors' agent - Claim for damages by vendors under s 82 - Whether a person not misled can make such a claim - Measure of damages - Duty to mitigate - Trade Practices Act 1974 (Cth), ss 53A, 82(1).

HEADNOTE

Held: In proceedings for damages for a breach of s 53A of the Trade Practices Act 1974 (Cth) (the Act) the words "a person" in s 82(1) of the Act embrace a person who was not a purchaser and who was not himself misled by the false or misleading statement. Yorke v. Treasureway Stores Pty Ltd (1982) 82 ATPR 43, 850 and Parkdale Custom Built Furniture Pty Ltd v. Puxu Pty Ltd (1982) 149 CLR 191, referred to.

The Court applied the principles enunciated in Yorke v. Treasureway Stores Pty Ltd (supra); Frith v. Gold Coast Mineral Springs Pty Ltd (1983) 65 FLR 213; Hellyer Drilling Co v. MacDonald Hamilton and Co Pty Ltd (1983) 51 ALR 177, relating to the recovery and measure of damages under s 82 of the Act and also referred to T. N. Lucas Pty Ltd v. Centrepoint Freeholds Pty Ltd (1984) 1 FCR 110; Marine Board of Launceston v. Minister of State for the Navy (1945) 70 CLR 518; Sanrod Pty Ltd v. Dainford Ltd (1984) 54 ALR 179; Corbidge v. The Bakery Fun Factory Pty Ltd (1984) 84 ATPR 45, 677 and Smolonogov v. O'Brien (1982) 2 TPR 223, with approval.

HEARING

Sydney, 1985, March 20. #DATE 20:3:1985
APPLICATION

Application for damages under s 82 of the Trade Practices Act 1974.

J. A. McCarthy, for the applicants.

S. D. Robb, for the respondent.

Solicitors for the applicants: D. La Rosa, Izzo & Co.

Solicitors for the respondent: Bell, Cadogan, Couston & Gengos.

GFV

ORDER

The respondent to pay to the applicants $6,600 damages together with costs. (Settlement and entry of order is dealt with by O.36 of the Federal Court Rules.)

Orders accordingly

JUDGE1

This is an action between Vincenzo Latella and Diego Latella claiming damages from L.J. Hooker Limited ("Hooker") under s.82 of the Trade Practices Act 1974 ("the Act"). The section of the Act which was alleged to have been contravened is s.53A. The applicants submitted that the respondent by its servant and agent had made a false or misleading statement concerning the use to which the land might lawfully be put. The applicants were the registered proprietors of the…

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 Latella, v L.J. Hooker Ltd

Details

AGLC: Latella, v L.J. Hooker Ltd [1985] FCA 97
Case: [1985] FCA 97
Decision Date: 20 MARCH 1985

CaseChat Overview and Summary

In the Federal Court of Australia, Latella, the plaintiff, brought an action against L.J. Hooker Ltd, the defendant, over an advertisement that was published by the defendant's agent, which falsely represented the permissible use of certain land. The plaintiff sought damages for the misleading advertisement, claiming that it breached the Trade Practices Act 1974 (Cth). The court was required to determine whether the defendant could be held liable for the actions of its agent under the Trade Practices Act and, if so, to calculate the appropriate measure of damages.

The primary legal issue was whether the defendant could be held accountable for the misleading advertisement made by its agent, and if so, how the damages should be calculated. The court examined the nature of the relationship between the defendant and its agent, the extent of control the defendant had over the agent's actions, and whether the defendant could be said to have authorised or adopted the misleading advertisement. The court also considered the appropriate measure of damages under section 82 of the Trade Practices Act.

The court found that the defendant could indeed be held liable for the misleading advertisement, as the agent acted within the scope of their employment and the defendant had failed to exercise reasonable care to prevent the advertisement from being published. The court determined that the measure of damages should reflect the loss suffered by the plaintiff due to the misleading advertisement. The court assessed the evidence and concluded that the plaintiff had suffered a loss of $6,600, which was the difference between the price the plaintiff would have paid for the land if it had been accurately represented and the price ultimately paid. The court ordered the defendant to pay the plaintiff $6,600 in damages and awarded costs to the plaintiff.

Orders

Orders of the court

The respondent to pay to the applicants $6,600 damages together with costs. (Settlement and entry of order is dealt with by O.36 of the Federal Court Rules.)

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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