Mark Bain Constructions Pty Ltd v Avis

Case [2012] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

Mark Bain Constructions Pty Ltd v Avis; Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd [2012] QCA 100

PARTIES:

In the “Avis Appeal”:

MARK BAIN CONSTRUCTIONS PTY LTD
ACN 010 846 385
(appellant)
v
CAROL LYNETTE AVIS
(respondent)

In the “Barnscape Appeal”:

MARK BAIN CONSTRUCTIONS PTY LTD
ACN 010 846 385
(appellant)
v
BARNSCAPE PTY LTD
ACN 077 636 367
(respondent)

FILE NO/S:

Appeal No 3844 of 2011
Appeal No 3845 of 2011
SC No 2488 of 2007
SC No 2491 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2011

JUDGES:

Fraser and Chesterman JJA, and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In the “Avis Appeal” (No 3844 of 2011):

Allow the appeal.1.          

Set aside the orders made in the Trial Division in 2488/07 on 11 April and 6 June 2011.2.          

In lieu thereof order that:3.          

there be judgment for the plaintiff for $219,237.86 inclusive of interest to 11 April 2011.(a)        

the first defendant pay the plaintiff’s costs of the proceeding to 2 February 2010 fixed at $36,614.36.(b)        

the plaintiff’s costs of the proceedings from 2 February 2010 and the defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, be assessed on the standard basis.(c)        

the first defendant pay the plaintiff’s costs of the proceedings from 2 February 2010 as assessed, less her costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010.(d)        

the plaintiff pay the first defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including its costs of obtaining the further expert report ordered on 16 April 2010.(e)        

In the “Barnscape Appeal” (No 3845 of 2011):

Allow the appeal.4.          

Set aside the orders made in the Trial Division in 2491/07 on 11 April and 6 June 2011.5.          

In lieu thereof order that:6.          

there be judgment for the plaintiff for $288,860.33 inclusive of interest to 11 April 2011.(a)        

the first defendant pay the plaintiff’s costs of the proceeding to 2 February 2010 fixed at $44,166.93.(b)        

the plaintiff’s costs of the proceedings from 2 February 2010 and the defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, be assessed on the standard basis.(c)        

the first defendant pay the plaintiff’s costs of the proceedings from 2 February 2010 as assessed, less its costs of the application to…

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AGLC
Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100
Case
[2012] QCA 100
Decision Date

CaseChat Overview and Summary

The matter involved two appeals, one from the decision of the Trial Division in the matter of Avis and the other from the decision of the Trial Division in the matter of Barnscape. Both appeals were against Mark Bain Constructions Pty Ltd, the developer of luxury apartments. The respondents, separately, entered into contracts to purchase luxury apartments from the developer, relying on representations made by real estate agents that the ocean view from the apartments would be uninterrupted. Upon settlement, the respondents were dissatisfied with their view, as it was obstructed by a new building. They claimed that the representations were false, misleading, and deceptive, contravening sections 52 and 53A of the Trade Practices Act 1974 (Cth). The developer argued that the real estate agent lacked authority to make such representations.

The primary legal issues involved the scope of the real estate agent's authority, the nature of the representations, and the assessment of damages. The developer contended that the real estate agent was only authorised to market the apartments for sale, and the representations were not authorised. The court had to determine whether the trial judge erred in finding that the real estate agent had actual authority and whether the representations were about future matters. Additionally, the developer argued that the respondents did not rely on the representations, and the trial judge erred in finding otherwise. Lastly, the developer challenged the trial judge's decision to assess damages in accordance with the abandoned measure of loss.

The court found that the real estate agent's representations fell within the scope of its actual authority. The court dismissed the developer's argument that there was no representation as to a future matter. The court also held that the trial judge did not err in finding that the respondents relied upon the representations and were induced into the contract. The court found that the trial judge did not err in assessing damages in accordance with the abandoned measure of loss, despite the developer's argument of substantial prejudice. The court also ruled that the compromise between the respondents and the second defendants did not release the developer from liability.

The court allowed both appeals, set aside the orders made by the Trial Division, and ordered judgment for the respective plaintiffs. The developer was ordered to pay the plaintiffs' costs up to a certain date, with further costs assessed on the standard basis. The plaintiffs were ordered to pay certain costs incurred by the developer.

Orders

Orders of the court

In the “Avis Appeal” (No 3844 of 2011):

Allow the appeal.1.

Set aside the orders made in the Trial Division in 2488/07 on 11 April and 6 June 2011.2.

In lieu thereof order that:3.

there be judgment for the plaintiff for $219,237.86 inclusive of interest to 11 April 2011.(a)

the first defendant pay the plaintiff’s costs of the proceeding to 2 February 2010 fixed at $36,614.36.(b)

the plaintiff’s costs of the proceedings from 2 February 2010 and the defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, be assessed on the standard basis.(c)

the first defendant pay the plaintiff’s costs of the proceedings from 2 February 2010 as assessed, less her costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010.(d)

the plaintiff pay the first defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including its costs of obtaining the further expert report ordered on 16 April 2010.(e)

In the “Barnscape Appeal” (No 3845 of 2011):

Allow the appeal.4.

Set aside the orders made in the Trial Division in 2491/07 on 11 April and 6 June 2011.5.

In lieu thereof order that:6.

there be judgment for the plaintiff for $288,860.33 inclusive of interest to 11 April 2011.(a)

the first defendant pay the plaintiff’s costs of the proceeding to 2 February 2010 fixed at $44,166.93.(b)

the plaintiff’s costs of the proceedings from 2 February 2010 and the defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, be assessed on the standard basis.(c)

the first defendant pay the plaintiff’s costs of the proceedings from 2 February 2010 as assessed, less its costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010.(d)

the plaintiff pay the first defendant’s costs of the application to amend heard on 16 April 2010, and the costs of the hearings on 31 May 2010, 1 June 2010 and 3 June 2010, including its costs of obtaining the further expert report ordered on 16 April 2010.(e)

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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