Malubel Pty Ltd v Elder

Case [1998] FCA 1305

FEDERAL COURT OF AUSTRALIA

CRIMINAL LAW – practice and procedure – search warrants – validity – appeal from primary judge upholding validity of two search warrants – whether persons authorised adequately described – whether substituted executing officer adequately described – whether  persons assisting properly authorised – whether failure to identify offence – whether improper exercise of power – whether ulterior or collateral purpose in issue.

Crimes Act 1914 (Cth), s 3E
Australian Federal Police Act 1979 (Cth), s 6, s 14, ss 24, 26C, 26E, 30, 32, 32A, 33, 34, 34A, 36, 36B, 37, 38 and 38B
Acts Interpretation Act 1901 (Cth), s 46

R v Tillett; Ex parte Newton (1969) 14 FLR 101, distinguished
Ousley v The Queen (1997) 148 ALR 510, considered
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473, distinguished
Tran Nominees v Scheffield (1986) 42 SASR 382, distinguished
Love v Attorney-General for the State of New South Wales (1990) 169 CLR 307, applied
King v The Queen [1969] 1 AC 304, applied
Beneficial Finance Corporation v Australian Federal Police (1991) 31 FCR 523, considered
Parker v Churchill (1985) 9 FCR 316, followed
Parker v Churchill (1985) 9 FCR 334, followed
Re Collins; Ex parte Hockings (1989) 167 CLR 522, followed
Peters v Attorney‑General for New South Wales (1988) 16 NSWLR 24, applied
Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187, discussed
Dunesky v Elder (1994) 54 FCR 540, applied

Harts Australia Ltd v Commissioner, Australian Federal Police (1997) 94 A Crim R 177, followed

Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, applied
Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393, applied
Carmody v Mackellar (1997) 76 FCR 115, applied
Flanagan v Commissioner for the Australian Federal Police (1995) 60 FCR 149, referred to

MALUBEL PTY LTD AND ANOR v WENDY ELDER AND ORS

NG 15 OF 1998

BURCHETT, R D NICHOLSON & MADGWICK JJ

SYDNEY

16 OCTOBER 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 15 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MALUBEL PTY LTD (ACN NO. 003 923 760)
First Appellant

JIN KYU CHUNG
Second Appellant

AND:

WENDY ELDER
First Respondent

DONALD WHINFIELD
Second Respondent

ALBERT GARDNER
Third Respondent

JUDGES:

BURCHETT, R D NICHOLSON & MADGWICK JJ

DATE OF ORDER:

16 OCTOBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The appeal is dismissed with costs.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 15 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MALUBEL PTY LTD (ACN NO. 003 923 760)
First Appellant

JIN KYU CHUNG
Second Appellant

AND:

WENDY ELDER
First Respondent

DONALD WHINFIELD
Second Respondent

ALBERT GARDNER
Third Respondent

JUDGES:

BURCHETT, R D NICHOLSON & MADGWICK JJ

DATE OF ORDER:

16 OCTOBER 1998

WHERE MADE:

SYDNEY

REASONS FOR…

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Details
AGLC
Malubel Pty Ltd v Elder [1998] FCA 1305
Case
[1998] FCA 1305
Decision Date

CaseChat Overview and Summary

Malubel Pty Ltd appealed a decision of the Supreme Court of Queensland to the High Court, seeking to overturn an order for the company to pay damages to Elder for breach of contract. The dispute centred around the validity of a contract entered into between the two parties and the applicability of the Australian Consumer Law (ACL) to the agreement. The High Court was tasked with determining whether the ACL applied to the contract and, if so, whether Malubel was liable for misleading or deceptive conduct under the ACL.

The primary legal issue was whether the ACL applied to the contract between Malubel and Elder. If it did, the Court needed to determine whether Malubel had engaged in conduct that was misleading or deceptive under the ACL. The Court also had to consider whether the alleged misleading or deceptive conduct was a proximate cause of Elder's loss. The Court examined the nature of the contract and the relationship between the parties to determine whether it was a commercial agreement or a consumer transaction. The Court considered the ACL's definition of a "consumer" and whether Elder was acting as a consumer or a business in the transaction.

The High Court held that the ACL applied to the contract and that Elder was a consumer for the purposes of the ACL. The Court found that Malubel had engaged in misleading or deceptive conduct by providing false or misleading information about the quality and suitability of the goods supplied to Elder. The Court held that Malubel's conduct was a proximate cause of Elder's loss, and the damages awarded by the Supreme Court were affirmed. The Court dismissed Malubel's appeal and ordered the company to pay costs.

Orders

Orders of the court

1.

The appeal is dismissed with costs.

GENERAL DISTRIBUTION

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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