Marks v GIO Australia Holdings Ltd - [1999] FCA 1010

FEDERAL COURT OF AUSTRALIA
Marks v GIO [1999] FCA 1010
PRACTICE AND PROCEDURE – representative or class action – claims in contract and for misleading and deceptive conduct – most claims for relief dismissed at first instance – limited damages awarded for misleading and deceptive conduct – findings on liability at first instance unanimously upheld on appeal in Full Court – division of views in Full Court on damages – non-determination of cross appeal seeking wider relief rejected at first instance – award of damages set aside without the granting of alternative relief – remittal of one issue to trial judge by Full Court – applicant's appeal dismissed by High Court for different reasons among the Justices and all different to Full Court – no ruling by High Court as a court on the remitted question – whether any limitation on the power of first instance courts where a further hearing is ordered by an appellate court – whether fresh evidence admissible –relevance of whether remitted issue was argued at trial
COSTS – appropriate considerations when both parties have lost major issues at trial and contributed to costs and delays – little attempt by parties to work out interlocutory issues without recourse to court – confrontation preferred to compromise on small issues as well as on major issues
Trade Practices Act 1974 (Cth) s 82, s 87
Federal Court of Australia Act 1976 (Cth) s 28(1)(c),
Fair Trading Act 1987 (NSW)
Gates v City Mutual Life Assurance Society Ltd [1986] 160 CLR 1
Latoudis v Cacy [1990] 170 CLR 534;
Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127, 79 ALR 685
Inn Leisure Industries Pty Limited (provisional liquidator appointed) v D F McCloy Pty Limited (No. 2) (1991) 28 FCR 172
National Mutual Life Association of Australia Ltd v Windsor [1991] 28 FCR 214
Marks & Ors v GIO Australia Holdings Ltd [1996] 63 FCR 304
Marks & Ors v GIO Holdings Ltd & Ors (No 2) [1996] 66 FCR 128
GIO Australia Holdings Ltd v Marks [1996] 70 FCR 559
Lynch v Howard [1980] 44 FLR 71
Schindler Lifts (Aust) Pty Limited v Debelak (1989) 89 ALR 272; 15 IPR 129
Commonwealth Bank of Australia v Quade [1991] 102 ALR 487
Bourke & Anor v Beneficial Finance Corporation [1994] 124 ALR 716
Marks v GIO Australia Holdings Ltd [1998] 158 ALR 333
Akins v National Australia Bank [1995] 10 LegRep SL3a
Akins v National Australia Bank [1994] 34 NSWLR 155
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129
Cretazzo v Lombardi (1975) 13 SASR 4
Austin v Ansett Transport Industries (Operations) Pty Ltd (Burchett J unreported 26 August 1993)
MICHAEL MARKS & ORS V GIO AUSTRALIA HOLDINGS LTD & ORS
NG 379 OF 1993
THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
30 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 379 OF 1993

BETWEEN:

MICHAEL MARKS & ORS
Applicants

AND:

GIO AUSTRALIA…

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: [1999] FCA 1010
Decision Date: 30 JULY 1999

CaseChat Overview and Summary

The applicants, including the first applicant representing several others, sued the respondents (the GIO) for damages and other relief in contract and under the Trade Practices Act 1974 (Cth) (TPA) and the Fair Trading Act 1987 (NSW) (FTA) as a result of loans made to them by the respondents between February 1991 and April 1992. The court was required to decide whether the GIO was entitled to increase the interest margin on the fourth applicant’s loan from and after 1 August 1992, and if not, whether the GIO was required to refund the additional instalments paid by her since that date. The court was also required to decide whether the GIO's letter of 21 April 1992, which notified the applicants of an increase in the interest margin, was sent to the fourth applicant, Mrs Alexandra Williamson, at her last known address. The court was further required to decide the appropriate costs to be awarded in the case.

The court found that the GIO was not entitled to increase the interest margin on Mrs Williamson’s loan from the original 1.25% and ordered that it refund to the Williamsons an amount equivalent to the additional interest charge from 1 August 1992 to date. The court also found that the GIO was required to refund the additional instalments paid by Mrs Williamson since that date. The court further found that the GIO's letter of 21 April 1992 was not sent to Mrs Williamson at her last known address. The court ordered that all parties, except the fourth applicant, pay their own costs of the first instance hearing, including all costs reserved at earlier stages in the case. The fourth applicant was ordered to pay her own costs of the remitted issue. The GIO was ordered to pay the fourth applicant’s costs of the first instance hearing and the appeals to the Full Court and the High Court except the costs of the remitted issue on which the two parties were to bear their own costs.

Orders