Maclean v Rottnest Island Authority - [2000] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MACLEAN -v- ROTTNEST ISLAND AUTHORITY [2000] WASC 106

CORAM: SCOTT J

HEARD: 27, 30 & 31 MARCH 2000

DELIVERED : 4 MAY 2000

FILE NO/S: CIV 2235 of 1997

BETWEEN: IAN JAMES MACLEAN
Plaintiff
AND
ROTTNEST ISLAND AUTHORITY
Defendant

Catchwords:

Civil trial - Negligent misrepresentation - Verbal and written representations - Telephone conversations - Duty of care owed by defendant - Council aware that plaintiff intended to act upon information provided to him - Representations true in substance and in fact - No cause of action - Misrepresentation in Council letter to plaintiff

Local government regulations - Amendments to the Rottnest Island Regulations 1988 - Plaintiff's position altered as a result of amendments to regulations - No misrepresentation - Defendant's statements accorded with the law

Breach of Fair Trading Act 1987 - Nothing in representations that offended s 10 of the Fair Trading Act 1987 - Defendant's conduct not unconscionable

Estoppel - Not necessary to decide if cause of action established

Damages - Asset built for special purpose - Specialised vessel built by plaintiff - Damages assessed from the time that misrepresentation occurred - Damages discounted for fair wear and tear - Plaintiff enjoyed use of asset for a number of years - Damages discounted for fittings that are saleable - No damages awarded for distress or inconvenience - Turns on own facts

Legislation:

Fair Trading Act 1987, s 9, s 10

Local Government Act
Rottnest Island Authority Act 1987

Rottnest Island Regulations 1988

Result:

Judgment for the plaintiff in first cause of action only
Limited costs awarded

Representation:

Counsel:

Plaintiff: Mr L A Tsaknis
Defendant: Mr K J Martin QC & Mr P P McCann

Solicitors:

Plaintiff: Cockle & Co
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Annand and Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165
Carroll v Azolia Pty Ltd [2000] WASC 95
Commonwealth of Australia v The State of Tasmania & Ors (1983) 158 CLR 1
Shaddock v Parramatta City Council (1981) 150 CLR 225
Siddons v Stanley Works (1991) 20 FCR 14
Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387
Zoneff & Anor v Elcom Credit Union Ltd (1990) ATPR 51,142

Case(s) also cited:

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Marks v GIO Holdings Ltd [1998] HCA 69; (1998) 158 ALR 333
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] 21 FCR 193
Sykes v Reserve Bank of Australia (1998) 88 FCR 511
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Yates v Boland [1999] HCA 64; (1999) 167 ALR 575

SCOTT J: The plaintiff in this action is now retired and aged 54 years. He has held a mooring at Narrow Neck, towards the western end of Rottnest Island, but on the north side, since 1984. He owned and used two vessels prior to the matters arising in the present action.

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: [2000] WASC 106
Decision Date: 4 MAY 2000

CaseChat Overview and Summary

The case of Maclean v Rottnest Island Authority involved a claim by the plaintiff, Mr Maclean, against the Rottnest Island Authority for negligent misrepresentation and breach of the Fair Trading Act 1987. The plaintiff alleged that the defendant's representations led him to believe that his business operations would not be adversely affected by changes to local government regulations, resulting in financial loss due to the construction of a specialised vessel. The matter was heard in the Supreme Court of Western Australia.

The primary legal issues revolved around whether the defendant owed a duty of care to the plaintiff, whether the representations made by the defendant were negligent, and if they amounted to a breach of the Fair Trading Act 1987. Additionally, the court had to determine if the plaintiff's claim for damages was justified and whether any misrepresentation occurred that would give rise to a cause of action.

The court found that the defendant did not owe a duty of care to the plaintiff as the representations were true in substance and fact. The plaintiff's intended actions were based on his own assessment and not solely on the defendant's information. The amendments to the Rottnest Island Regulations 1988 did not constitute a misrepresentation as they were in accordance with the law. The court also held that the defendant's conduct did not offend section 10 of the Fair Trading Act 1987 and was not unconscionable. Given that the plaintiff failed to establish a cause of action, the court did not need to address the issue of estoppel. In terms of damages, the court assessed them from the time of the alleged misrepresentation, accounting for fair wear and tear and saleable fittings, but did not award damages for distress or inconvenience.

The final orders of the court dismissed the plaintiff's claims in their entirety, with no damages awarded to the plaintiff.

Orders