Miletich v Murchie

In Miletich v Murchie, the applicants, prospective operators of a café franchise in a new shopping centre development, alleged that they were misled by representations made by the respondents about the businesses of other tenants and the extent of patronage. The misrepresentations were made through a computer-animated video, a brochure, and orally, as well as in a written landlord disclosure statement. The applicants sought damages for the misleading and deceptive conduct under the Australian Consumer Law. The court was required to determine whether the representations were misleading and deceptive, whether the applicants relied on them, and the amount of loss and damage suffered by the applicants. The court also needed to decide the apportionment of liability among the concurrent wrongdoers, including the letting agent, its director, the developer, and its director.

The court found that the representations made by the respondents were misleading and deceptive, as they were not based on any reasonable grounds and were likely to mislead the applicants. The court also found that the applicants relied on the representations when deciding to enter into the lease agreement. The court further found that the applicants suffered loss and damage due to the misleading and deceptive conduct, but the exact amount of loss and damage needed to be determined through further evidence. Regarding the apportionment of liability, the court held that the respondent letting agent and its director were vicariously liable for the conduct of the respondent developer and its director. However, the court found that it was not necessary for the applicants to plead and prove material facts relevant to apportionment, as the provisions relating to vicarious liability were sufficient to determine the liability of the letting agent and its director.

The court ordered that judgment be entered against the letting agent and its director in favour of the applicants. The court also ordered that the applicants file and serve an affidavit detailing the terms of settlement reached between them and the developer and its director, and, if necessary, set out the amount they claimed to be entitled to deduct from any lump sum settlement by way of costs. The applicants were also ordered to file and serve minutes of proposed orders that reflected the reasons for judgment. The proceeding was listed for further hearing on a suitable date, on which submissions as to the appropriate orders could be made. The court also ordered that the letting agent and its director pay the applicants' costs of the proceeding, so far as those costs had been incurred in relation to the claim against the letting agent and its director.