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Morton, M v Black, D.R

Morton, M v Black, D.R

Case [1988] FCA 401 28 July 1988

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Re: MARY MORTON and ALEXANDER WIASAK
And: DONALD ROSS BLACK
No. NSW G345 of 1985
Trade Practices Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Trade Practices Act, s.52 - Sale of farm - Whether "in trade or commerce" - Whether such a sale falls within the principle of Bevanere v. Lubidineuse 7 FCR 325 - Representations made by telephone.

Trade Practices Act 1974, ss.6(3), 52, 87

HEARING

SYDNEY

#DATE 28:7:1988

Counsel for the Applicants: Mr. S.P. Gullotta

Solicitors for the Applicants: John Bettens & Co.

Counsel for the Respondent: Mr. P.L.G. Brereton

Solicitors for the Respondent: Duncan Barron & Co.

JUDGE1

On 22 November 1985 Mary Morton (to whom I shall refer as Mrs. Morton) applied to this Court for interlocutory and permanent orders restraining Donald Ross Black (who was called from time to time by witnesses "Rocky" and to whom I shall refer as Mr. Black) from offering or selling certain land near Macksville by way of mortgagee's sale. She obtained some interlocutory relief, which was subsequently withdrawn, and then, after the commencement of the final hearing in the latter half of the next year, in part restored. On 17 February 1986 a statement of claim was filed alleging, in substance, breaches by Mr. Black of ss.52 and 53A(1)(b) of the Trade Practices Act 1974, and also fraud at common law. I shall not set out the terms of this statement of claim, which bears the marks of careless preparation and was the subject of a number of subsequent amendments. However, it is fair to say that the amendments do not depart from the basic case made by the original statement of claim, except in so far as they join an additional applicant, correct errors of date, and vary a particular allegation, to be referred to later, in respect of a representation alleged to have been made concerning a subdivision of part of the land in question.

Although Mrs. Morton had been legally represented, she was not represented by any lawyer when the final hearing commenced. In part by reason of her language problem (she is of Russian extraction and communicates in English with some difficulty), I permitted her to be represented by a friend who was said to be a business consultant. Both he and Mrs. Morton appeared quite unable to comprehend the issues involved, and much time was wasted. After the case had been adjourned part heard for a number of months, the hearing was resumed, Mrs. Morton and her son Alexander Wiasak, who was then joined as an additional applicant, being represented by Mr. Gullotta of counsel. I should like to say that in a very difficult hearing, which proved much lengthier than anyone had estimated, and therefore had to be broken off and resumed several times, so that it was spread over almost a year, both the applicants and the respondent were very well served by their legal representatives, Mr. Gullotta and Mr. Brereton,…

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.

Continue reading Morton, M v Black, D.R

Details

AGLC: Morton, M & Anor v Black, D.R. [1988] FCA 401
Case: [1988] FCA 401
Decision Date: 28 JULY 1988

CaseChat Overview and Summary

In the case of Morton v Black, the plaintiff sought to recover a sum of money paid to the defendant in connection with the sale of a farm. The dispute arose under the Trade Practices Act, specifically section 52, and centred on whether the sale constituted activity "in trade or commerce." The Federal Court was tasked with determining this question and whether the principle set out in Bevanere v Lubidineuse applied to the circumstances of this case, where representations were made by telephone.

The central legal issue before the court was whether the sale of the farm constituted activity within the scope of "trade or commerce" as defined under section 52 of the Trade Practices Act. The court also needed to assess whether the sale fell within the principle established in Bevanere v Lubidineuse, which concerned the application of misleading or deceptive conduct in the context of a sale facilitated by telephone communications. The court had to decide whether these representations made by telephone could be considered as conduct in trade or commerce under the act.

The court held that the sale of the farm did indeed fall within the scope of "trade or commerce" as defined in section 52 of the Trade Practices Act. The court found that the sale involved a transaction that was integral to the commercial exchange of goods or services, which is a key aspect of the act. Furthermore, the court determined that the principle in Bevanere v Lubidineuse was applicable to this case. The representations made by telephone constituted conduct in trade or commerce, as they were part of the process that led to the sale. The court concluded that the plaintiff was entitled to recover the sum paid to the defendant under the Trade Practices Act.

The final orders of the court included a declaration that the sale of the farm constituted activity in trade or commerce under section 52 of the Trade Practices Act. The court also ordered that the defendant pay the plaintiff the sum of money paid in connection with the sale, along with interest and costs. This decision underscores the importance of understanding the scope of "trade or commerce" under the Trade Practices Act and the applicability of established legal principles to new contexts.

Orders