Makings Custodian Pty Ltd v CBRE (C) Pty Ltd - [2017] QSC 80

SUPREME COURT OF QUEENSLAND

CITATION:

Makings Custodian Pty Ltd & Anor v CBRE (C) Pty Ltd & Ors [2017] QSC 80

PARTIES:

MAKINGS CUSTODIAN PTY LTD ACN 139 197 130

(first plaintiff)
and
MAKINGS PTY LTD ACN 120 563 260

(second plaintiff)
v
CBRE (C) PTY LTD ACN 003 205 552
(first defendant)
and
ORCHID AVENUE REALTY PTY LTD
ACN 093 431 595
(second defendant)
and
STEPHEN GUY SOLOMONS
(first third party)
and
DUNCAN IAN ROBERT McINNES
(second third party)

FILE NO/S:

No 7764 of 2014

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

11 to 19 August 2016; 24 and 26 August 2016

JUDGE:

Dalton J

ORDER:

1.  Judgment for the first defendant against the plaintiffs.

2.  Judgment for the plaintiffs against the second defendant in the sum of $1,640,252, together with interest to be calculated.

3.  Judgment for the third parties against the second defendant.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – REAL ESTATE TRANSACTIONS – where the plaintiffs purchased a shopping centre – where real estate agent made statements to the plaintiffs, and prepared and provided documents to the plaintiffs containing financial and other information about the premises – where the plaintiffs argue that the real estate agent misrepresented the net rent payable by tenants and the outgoings payable by the owner – where the plaintiffs argue that the second defendant misrepresented the likely yield of the premises – where the documents were prepared using information prepared by the first defendant – whether the real estate agent or first defendant engaged in misleading or deceptive conduct

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR
FALSE REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – EXCLUSION CLAUSES, DISCLAIMERS AND ACKNOWLEDGEMENTS – where real estate agent provided documents to the plaintiffs – where the documents included a disclaimer that real estate agent gave no representations as to the accuracy or truth of the information – whether the disclaimer exempted real estate agent from liability to the plaintiffs

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – DEFENCES – where the second defendant limited its contributory negligence case during the trial to the conduct of one of the directors of the plaintiffs – where the director failed to verify information provided by real estate agent with the first defendant – where the director failed to make further inquiries of the first defendant after vendor failed to respond to queries from the plaintiffs’ solicitors – whether the plaintiffs contributed to their own loss

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – DEFENCES – PROPORTIONATE LIABILITY – where real estate agent argued that first defendant and vendor were…

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: [2017] QSC 80
Decision Date: 19 May 2017

CaseChat Overview and Summary

Makings Custodian Pty Ltd (the plaintiffs) sought damages against CBRE (C) Pty Ltd (the first defendant), an estate agent, and others for losses they incurred in the purchase of a shopping centre. The plaintiffs alleged that the first defendant, through its employees, engaged in misleading or deceptive conduct by providing inaccurate financial information about the premises and failing to provide accurate information about the net rent payable by tenants and the outgoings payable by the owner. The plaintiffs also argued that the second defendant, which was involved in the sale of the premises, misrepresented the likely yield of the premises. The first defendant argued that it was not liable as it had disclaimed any representations as to the accuracy of the information provided. The second defendant argued that it was not liable as it had not made any misrepresentations and that the plaintiffs had contributed to their own loss.

The court found that the first defendant had engaged in misleading or deceptive conduct by providing inaccurate information to the plaintiffs about the premises. The court rejected the first defendant’s argument that the disclaimer exempted it from liability. The court also found that the second defendant had misrepresented the likely yield of the premises and was liable for damages. The court rejected the second defendant’s argument that it was not liable as it had not made any misrepresentations. The court found that the plaintiffs had not contributed to their own loss.

The court found that the third parties, who were the sole directors and shareholders of the vendor, were not liable to compensate the second defendant as persons involved in the contravention. The court rejected the second defendant’s argument that the third parties had knowingly provided inaccurate information to it.

The court ordered judgment for the first defendant against the plaintiffs, judgment for the plaintiffs against the second defendant in the sum of $1,640,252, together with interest, and judgment for the third parties against the second defendant.

Orders

Orders of the court

1. Judgment for the first defendant against the plaintiffs.

2. Judgment for the plaintiffs against the second defendant in the sum of $1,640,252, together with interest to be calculated.

3. Judgment for the third parties against the second defendant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Makings Custodian Pty Ltd & Anor v CBRE (C) Pty Ltd & Ors [2017] QSC 80
PARTIES:	MAKINGS CUSTODIAN PTY LTD ACN 139 197 130 (first plaintiff) and MAKINGS PTY LTD ACN 120 563 260 (second plaintiff) v CBRE (C) PTY LTD ACN 003 205 552 (first defendant) and ORCHID AVENUE REALTY PTY LTD ACN 093 431 595 (second defendant) and STEPHEN GUY SOLOMONS (first third party) and DUNCAN IAN ROBERT McINNES (second third party)
FILE NO/S:	No 7764 of 2014
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	11 to 19 August 2016; 24 and 26 August 2016
JUDGE:	Dalton J
ORDER:	1. Judgment for the first defendant against the plaintiffs. 2. Judgment for the plaintiffs against the second defendant in the sum of $1,640,252, together with interest to be calculated. 3. Judgment for the third parties against the second defendant.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – REAL ESTATE TRANSACTIONS – where the plaintiffs purchased a shopping centre – where real estate agent made statements to the plaintiffs, and prepared and provided documents to the plaintiffs containing financial and other information about the premises – where the plaintiffs argue that the real estate agent misrepresented the net rent payable by tenants and the outgoings payable by the owner – where the plaintiffs argue that the second defendant misrepresented the likely yield of the premises – where the documents were prepared using information prepared by the first defendant – whether the real estate agent or first defendant engaged in misleading or deceptive conduct TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – EXCLUSION CLAUSES, DISCLAIMERS AND ACKNOWLEDGEMENTS – where real estate agent provided documents to the plaintiffs – where the documents included a disclaimer that real estate agent gave no representations as to the accuracy or truth of the information – whether the disclaimer exempted real estate agent from liability to the plaintiffs TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – DEFENCES – where the second defendant limited its contributory negligence case during the trial to the conduct of one of the directors of the plaintiffs – where the director failed to verify information provided by real estate agent with the first defendant – where the director failed to make further inquiries of the first defendant after vendor failed to respond to queries from the plaintiffs’ solicitors – whether the plaintiffs contributed to their own loss TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – DEFENCES – PROPORTIONATE LIABILITY – where real estate agent argued that first defendant and vendor were…