Leroux and Leroux and Anor - [2015] FamCA 762

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ANOR

[2015] FamCA 762

FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother seeking an order to restrain the father from further prosecuting proceedings against psychologist – Application granted in circumstances where father provided an undertaking not to prosecute proceedings against psychologist in the Magistrates Court

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made for the provision of documents to Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT:

Ms Leroux

FIRST RESPONDENT:

Mr Leroux

SECOND RESPONDENT:

Ms Digby

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

HBC

909

2014

DATE DELIVERED:

21 August 2015

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blissendon

SOLICITOR FOR THE APPLICANT:

Blissenden Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Leroux in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

IT IS NOTED

Mr Leroux unconditionally undertakes to the Family Court of Australia that he will forthwith withdraw the Restraint Order Application made against Ms B (Psychologist) listed in the Hobart Magistrates Court on Friday 21 August 2015.

IT IS ORDERED

Leave is given to the solicitor for Ms Leroux (‘the applicant’) to provide to Ms B copies of the following:-
(a)     this order;
(b)     the applicant’s application in a case filed 20 August 2015;
(c)     the affidavit Robert Blissenden filed 20 August 2015;
(d)     the reasons of Judge Baker delivered 16 July 2015; and
(e)     the email from Mr Fitzgerald dated 20 August 2015

The Legal Practitioner for the applicant forthwith forward sealed or true copies of:-
(a)this order;
(b)the applicant’s application in a case filed 20 August 2015;
(c) the affidavit Robert Blissenden filed 20 August 2015;
(d)the reasons of Judge Baker delivered 16 July 2015; and
(e)the email from Mr Fitzgerald dated 20 August 2015.
to the Registrar, Hobart Magistrates Court, prior to 2.15pm on 21 August 2015 and marked to the attention of Magistrate Daly.
Save and except the question of the applicant’s costs application and any leave arising from these orders; the application in a case filed 20 August 2015, as has not been dealt with by these orders, is otherwise dismissed.
Leave is given to the applicant to restore the application in a case to the Family Court of Australia, upon the giving of one (1) hour’s notice, in the event that the respondent does not comply with the undertaking noted above. Such leave to operate until 4 September 2015.
Costs of the applicant be and are reserved.

IT IS DIRECTED

A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux

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: [2015] FamCA 762
Decision Date: 21 August 2015

CaseChat Overview and Summary

The parties to this proceeding were the applicants, Mr. and Mrs. Leroux, and the respondents, who were the purchasers of their former home. The dispute concerned the purchasers' claim for damages arising from alleged misrepresentations made by the vendors regarding the property's condition, specifically concerning a leaking roof and associated water damage. The matter was heard in the Supreme Court of Victoria by Benjamin J.

The central legal issue before the court was whether the vendors had made actionable misrepresentations to the purchasers concerning the property's condition, and if so, whether those misrepresentations caused the purchasers loss for which they were entitled to damages. This involved determining the nature of the statements made, their truthfulness, and whether they induced the purchasers to enter into the contract of sale.

Benjamin J found that the vendors had made misrepresentations regarding the roof's condition, which were not true at the time they were made. His Honour applied the principles of contract law relating to misrepresentation, considering whether the statements were statements of fact rather than mere opinion or puffery. The court determined that the purchasers had relied on these representations when deciding to purchase the property, and that the subsequent discovery of the leaking roof and water damage constituted a loss flowing from that reliance.

The court ordered that the purchasers were entitled to damages, the quantum of which was to be assessed.

Orders