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Petera Pty Ltd v EAJ Pty Ltd

Petera Pty Ltd v EAJ Pty Ltd

Case [1985] FCA 347 26 July 1985

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TPmE -=PACTICES - Misleadlng o r dectptlve conduct - Alleqed mlsrepresentation as tc takings of restaurant - Condltion m

concrsct of sale of buslness scknowledglng that surchaser

has

not relled upon any statement, representation, warranty

o r

condition not expressed in cor.tract

- Whether condltlon

excludes 5.5'.

claim based on aileqed mlsrepresentatlon

- Two

sets of accounts kept by respondents

- Question of wnlch set

was correct.

S. Pearson & Son, Limited v Dublin Corporation C19C73 A . C .

351, Xehr v Thorn C19691 W.A.R.

39, znarskl v Barbarlch

C19601

~~~

W.A.P.. 46 applled.

T.LY%TIGN - Evasion of income tax and group tax

Understatement of income

of business ar.d wages pald - Duty cf

Court to bring facts tc notlce

of the executive government

Relevance of taxatlon fraud in relatlon to order

f o r costs.

Marrlaae of P and P (19851 F.L.C. 91-605, Ritter v Godfrev

C19303 3 K.E: 4 7 , 3mald CamDbell & Co. Limlted v Ejsllak

C10173 A . C .

7 3 2 followed.

Trade Practices Act 1974 5 . 5 2

Federal Court of Australia Act

1976 5.43

1ETEPA

PTY

L I H i T E I j

Applicant

m:	E.A. J. PTY LIMITED

FirsE Respondent

E D W D ASHLEY JACKSON

Second Respondent

CYNTHIA JACKSON

Third Respondent

COFAM :	WILCCX J.
-	DATE :	25 JiTLY 1485
FLACE :	SYDNE'I

MINUTE OF ORDERS

1. The Applicatlon be dismissed.

2 .

The

applicant pay to

the

respondents

their

costs

the proceeding.

2 .

The Prlnclpal HeTlstrar of the Federal Court

hustralla forward

to the httorney-General

of tne

Commonwealth of Australia a copy of the reasons

for

!udq-ment herein and of the evldence of the respondent Edward Ashley Jackson and thereafter make available,

3s may be required, the full transcript

proceedlngs and the exhibits for lnspectlon by any

officers authorized in that behalf by the

Attorney-General or by the Commissioner of Taxation.

?he eshibits be returned after the explratlon

twenty-one (91) days, unless a notice of appeal shali

have been flled

in the meantime, but only upon

receipt by the

Principal Registrar of a notiflcatlm

from either the Attorney-General

or the Commlssloner

of Taxation that the exhibits will not be requlred In

connection with any matter relating to taxatlon.

NOTE :

Settlement and entr:I of

orders is deait with m

~lrder 36 of the Federal Court Rules.

Mo. G.184 of 10P4

BEIWEZN:

PETE93. PTY LIMITED

Appllcant

a:	E.A.J. PTY LIMITEE

Flrst Respondent

EDWLRD ASHLEP

JACKSON

Second Respondent

CYNTHIA JACKSON

Thlrd Respondent

C O P M	:	WILCOX J.
D=:	26 JULY 10E5
PLACE :	SYDNEY

RFASONS FOP JUDGMENT

"The Little Snail" is a well-known French restaurant

ln the Sydney suburb of Bondi. In January 1982 the restaurant business, whch 1s conducted in leased premises, was acquired

by E.A.J. Pty Limited, the first respondenc. The second and third respondents, Edward Ashley Jackson snd his wife Cynthla

Jackson, are directors

of E.A.J..…

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 Petera Pty Ltd v EAJ Pty Ltd

Details

AGLC: Petera Pty Ltd v EAJ Pty Ltd [1985] FCA 347
Case: [1985] FCA 347
Decision Date: 26 Jul 1985

CaseChat Overview and Summary

Petera Pty Ltd brought this proceeding against EAJ Pty Ltd, trading as "The Little Snail", alleging that the respondents engaged in misleading or deceptive conduct, deceit and negligence in representing that the restaurant had weekly takings in excess of $10,000. The applicant sought damages. The respondents denied the allegations and argued that an exclusion clause in the contract of sale precluded any claim for misrepresentation. The court had to decide whether the exclusion clause could be invoked to defeat a claim under section 52 of the Trade Practices Act and whether the respondents' representations were in fact false. The court held that the exclusion clause did not apply to the statutory claim and found that the respondents' representations were false. However, the court accepted the evidence of the respondents that a different set of accounts, not the one produced to the applicant, accurately reflected the restaurant's takings. The court held that the respondents had not misled the applicant and dismissed the application. The court also considered its duty to bring the respondents' tax evasion to the attention of the executive government.

Orders