TRADE PRACTICES - misleading or deceptive conduct - third party reliance - purchase of shares in hotel company - overstatement of sales figures for hotel where sales figures supplied to valuer and formed basis of valuation supplied to financier - whether misrepresentor can be liable if financier relied upon false valuation in financing purchase and applicant suffered damage as a result.
DEBT - agreement to transfer property in consideration for repayment of mortgage over property - repayment of mortgage by transferee with funds of transferor - onus of proving that transferee repaid funds to transferor - whether transferor has claim in debt or for breach of contract.
RELEASE - principles applicable to construction thereof.
INTEREST - pre-trial interest - whether discretion of trial judge miscarried when ordering pre-trial interest for part only of period between arising of cause of action and judgment.
REAL PROPERTY - vendor’s lien - whether circumstances indicate intention of parties that vendor not have equitable lien over property.
RONALD IAN McCARTHY & ORS v NEVILLE McINTYRE & ORS NG 1043 OF 1998
EDLAN NO. 54 PTY LIMITED v AURO ROMANO McINTYRE N 494 OF 1999
HILL, SACKVILLE, KATZ JJ SYDNEY 11 JUNE 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
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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AGLC
McCarthy v McIntyre [1999] FCA 784
Case
[1999] FCA 784
Decision Date
CaseChat Overview and Summary
The proceedings in McCarthy v McIntyre [1999] FCA 784 involved multiple appeals and cross-appeals arising from complex transactions between the parties. The key issues concerned alleged misleading or deceptive conduct under the Trade Practices Act 1974 (Cth), breach of contract, the applicability of a vendor's lien, and the calculation of interest on a sum of money. The Federal Court of Australia, in a comprehensive judgment, addressed each issue in turn.
Regarding the Tropicana transaction, the Court found that Neville McIntyre had supplied false sales figures to a valuer, resulting in an overstated valuation of the Tropicana Hotel. The primary judge had correctly found that this conduct was misleading or deceptive. However, the Court found that the primary judge had not addressed the appellants' alternative submission that Max McCarthy had suffered loss due to third party reliance on the false valuation, which would have induced Westpac to refinance Edlan's loan. The Court held that the case was capable of being sustained and that the appeal should be remitted for factual findings to determine whether Max had indeed suffered loss.
In the Riverview Lodge transaction, the Court upheld the primary judge's finding that Auro McIntyre had not repaid the sum owed to Edlan under the oral agreement. The Court held that the onus was on Auro to prove repayment, and it found that Auro had not discharged that onus. Regarding the release clause in the deed of settlement, the Court upheld the primary judge's construction, finding that the release did not apply to the claim against Auro. The Court also dismissed Edlan's appeal regarding the calculation of interest, holding that the primary judge's discretion had not miscarried. Finally, the Court allowed Edlan's appeal regarding the vendor's lien over Riverview Lodge, finding that the circumstances did not preclude Edlan from relying on an unpaid vendor's lien.
The Court's orders were to dismiss most appeals and cross-appeals, allow Max McCarthy's appeal regarding the Tropicana transaction to be remitted for factual findings, and declare that Edlan held an unpaid vendor's lien over Riverview Lodge. The Court invited submissions on the form of orders and costs before finalising the proceedings.