Mark Bain Constructions Pty Ltd v Carol Lynette Avis & Anor Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd

[2012] HCASL 174

MARK BAIN CONSTRUCTIONS PTY LTD

v

CAROL LYNETTE AVIS & ANOR

MARK BAIN CONSTRUCTIONS PTY LTD

v

BARNSCAPE PTY LTD & ANOR

[2012] HCASL 174
B24/2012
B25/2012

1. In these applications, the applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of Queensland (Fraser and Chesterman JJA and Fryberg J) by which the Court of Appeal allowed appeals against orders made by Atkinson J in the Trial Division of the Supreme Court. 

2. At first instance, Atkinson J found that the applicant had contravened Pt V of the Trade Practices Act 1974 (Cth) ("the Act") in connection with the sale off the plan of two penthouse units in a residential unit development on the Sunshine Coast. The first respondent to each of the applications in this Court had each purchased one of those penthouse units.

3. Atkinson J fixed the compensation payable to each of the first respondents under s 82 of the Act and interest, and entered judgment accordingly.

4. On the applicant's appeals to the Court of Appeal, that Court considered numerous grounds of appeal most of which are not relevant to the present applications for special leave.  For present purposes it is enough to notice that the Court of Appeal reduced the amounts which the trial judge had fixed as compensation and interest.

5. The applicant seeks to argue in this Court that the Court of Appeal applied wrong principles in determining the amounts of compensation to be allowed or, alternatively, misapplied the correct principles in determining those amounts.  There is no reason to doubt that the Court of Appeal correctly identified the principles to be applied in fixing compensation in these cases.  The Court of Appeal expressly referred in that regard to this Court's decision in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd[1].  The particular application of those principles in these cases presents no question suitable to a grant of special leave.

   [1](2004) 217 CLR 640; [2004] HCA 54.

6. The applicant also seeks to argue that the Court of Appeal (and Atkinson J) erred in determining the scope of the authority of certain real estate agents engaged by the applicant to make representations on behalf of the applicant.  We are not persuaded that the applicant would enjoy sufficient prospects of success and the particular application of the relevant principles presents no question suitable to a grant of special leave.

7. It is not shown to be in the interests of justice generally or in these particular cases that there be a grant of special leave.

8. Pursuant to r 41.11.1 of the High Court Rules 2004 the Registrar is directed to draw up, sign and seal an order that each application for special leave is dismissed with costs.

K.M. Hayne
5 December 2012 S.M. Crennan