Powell v The Minister for Transport
[2003] WASC 261
POWELL & ANOR -v- THE MINISTER FOR TRANSPORT & ORS [2003] WASC 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 261 | |
| Case No: | CIV:2583/2002 | 3 DECEMBER 2003 | |
| Coram: | MASTER SANDERSON | 18/12/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | CLIVE NEIL POWELL JOYCE POWELL THE MINISTER FOR TRANSPORT CROSSOVER HOLDINGS PTY LTD (009 289 383) T/as RAY WHITE (CARNARVON) RUDY VAN DONGEN COLIN THOMAS BARBER SUZANNE GAYLE BARBER |
Catchwords: | Practice and procedure Application for summary judgment by defendant Turns on own facts |
Legislation: | Marine and Harbours Act 1981, s 8 Rules of the Supreme Court, O 16 Trade Practices Act 1974, s 52 |
Case References: | Forsyth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994 Kimberley NZI Finance Ltd v Torero Pty Ltd & Ors (1989) ATPR 46-054 Webster v Lampard (1993) 177 CLR 598 Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dey v Victorian Railways Commissioner (1949) 78 CLR 62 Diversified Mineral Resources NL v CRA Exploration Pty Ltd (1995) ATPR 41-381 Edgar & Ors v Farrow Mortgage Services Pty Ltd (In Liq) (1992) ATPR 46-096 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR 46-054 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77 Royal British Bank v Turquand (1856) 119 ER 886 Warner v Elders Rural Finance Ltd (1993) 113 ALR 517 Webster v Lampard (1993) 116 ALR 545 Winterton Constructions Ltd v Hambros Australia Ltd (1992) 111 ALR 649 Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1996) ATPR 46-159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- JOYCE POWELL
Plaintiffs
AND
THE MINISTER FOR TRANSPORT
First Defendant
CROSSOVER HOLDINGS PTY LTD (009 289 383) T/as RAY WHITE (CARNARVON)
Second Defendant
RUDY VAN DONGEN
Third Defendant
COLIN THOMAS BARBER
SUZANNE GAYLE BARBER
Fourth Defendants
Catchwords:
Practice and procedure - Application for summary judgment by defendant - Turns on own facts
(Page 2)
Legislation:
Marine and Harbours Act 1981, s 8
Rules of the Supreme Court, O 16
Trade Practices Act1974, s 52
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr I Weldon
First Defendant : Mr A J Sefton
Second Defendant : Ms C M McNeilly
Third Defendant : Ms C M McNeilly
Fourth Defendants : No appearance
Solicitors:
Plaintiffs : Alison Camp
First Defendant : State Crown Solicitor
Second Defendant : Phillips Fox
Third Defendant : Phillips Fox
Fourth Defendants : No appearance
Case(s) referred to in judgment(s):
Forsyth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Kimberley NZI Finance Ltd v Torero Pty Ltd & Ors (1989) ATPR 46-054
Webster v Lampard (1993) 177 CLR 598
(Page 3)
Case(s) also cited:
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Diversified Mineral Resources NL v CRA Exploration Pty Ltd (1995) ATPR 41-381
Edgar & Ors v Farrow Mortgage Services Pty Ltd (In Liq) (1992) ATPR 46-096
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Kimberley NZI Finance Ltd v Torero Pty Ltd (1989) ATPR 46-054
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77
Royal British Bank v Turquand (1856) 119 ER 886
Warner v Elders Rural Finance Ltd (1993) 113 ALR 517
Webster v Lampard (1993) 116 ALR 545
Winterton Constructions Ltd v Hambros Australia Ltd (1992) 111 ALR 649
Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1996) ATPR 46-159
(Page 4)
1 MASTER SANDERSON: This is the first defendant's application for summary judgment. The application is brought under O 16 of the Rules of the Supreme Court. I have concluded that judgment should not be entered in favour of the first defendant and the plaintiffs should be given leave to proceed with their action. That being so, it is inappropriate that I provide a detailed analysis of either the facts or the relevant law. That must await trial. However, as a right of appeal is available to the first defendant under O 16 (unlike O 14 where there is no right of appeal available to a plaintiff unsuccessfully applying for summary judgment), it is appropriate that I state briefly why I dismissed the first defendant's application. In doing so I am not purporting to decide any questions of fact, nor in any way bind any Judge who may try this action in the future.
2 The statement of claim pleads that the first defendant is a body corporate with perpetual succession pursuant to s 8 of the Marine and Harbours Act 1981 ("the Act"). Pursuant to the provisions of the Act, the first defendant holds the freehold title in premises known as Lot H Carnarvon Boat Harbour ("the premises"). The second defendant is a firm of real estate agents. The third defendant is an agent employed by the second defendant. The fourth defendants are formerly lessees of the premises.
3 It is alleged by the plaintiffs that on or about 19 November 1999 the second defendant placed in a publication circulated in the Carnarvon area known as the "Carnarvon Classies" an advertisement for the sale of the fourth defendants' interest in the premises. The plaintiffs allege that the advertisement indicated that part of the premises could be used as a private residential dwelling. The plaintiffs say that in response to the advertisement they inspected the premises and on 24 November 1999 made an offer to purchase the fourth defendants' interest in the premises.
4 By par 10 of the statement of claim the plaintiffs allege that all defendants were at all material times aware that the plaintiffs believed that they were acquiring a property which could be used in an unrestricted way as residential property. Particulars of this material fact are provided. As against the first defendant it is said the Carnarvon office of the first defendant is located in the Carnarvon small boat harbour at a distance of some 300 metres from the premises and that the first defendant regularly received copies of the Carnarvon Classies. Based upon these two particulars, the plaintiffs say that the first defendant knew or "constructively knew" that the daughter of the fourth defendants and her boyfriend were living on the premises and that the fourth defendants were openly and overtly using the premises for residential purposes.
(Page 5)
5 The plaintiffs plead that the first defendant consented to an assignment of the lease on 13 December 1999 and on 17 December 1999 they acquired the premises. In or around September 2000 the first defendant wrote to the plaintiffs advising that the premises were subject to a number of restrictions, in particular there was no right to occupy the premises as a residence; or perhaps more correctly, what right of occupancy there was, was severely constrained.
6 By par 14 the plaintiffs alleged that the first defendant engaged in misleading and deceptive conduct. The conduct said to be misleading and deceptive is first allowing the other defendants to advertise the premises in terms of the advertisement and secondly, remaining silent during a course of correspondence between the first defendant, the plaintiffs and the second defendant between 19 November 1999 and 13 December 1999, as to any restriction on the use of the premises.
7 The first defendant says that the plaintiffs' claim cannot succeed for two reasons. First, it says that the evidence shows that the first defendant did not know that the premises were used for residential purposes, knew nothing of the advertisement in the Carnarvon Classies and during the correspondence passing between the plaintiffs, the first defendant and the second defendant, had no reason to draw the attention of the plaintiffs to the restriction on residential use of the premises. Secondly, it is said that the plaintiffs can point to no evidence which shows that the first defendant had any intention to mislead the plaintiffs. It was submitted that when an action is brought under s 52 of the Trade Practices Act 1974 as this one is, and where the action is based upon silence, to succeed a party must show that it was the intention of the alleged wrong-doer to mislead the claimant.
8 It can be seen immediately that the two matters put against the plaintiffs raise questions of fact. On a summary judgment application, a version of the facts most favourable to the respondent must be assumed, unless that evidence is "inherently incredible": see Webster v Lampard (1993) 177 CLR 598 per Mason CJ, Deane and Dawson JJ at 604.
9 Having said that, a defendant must only answer the causes of action pleaded in the statement of claim. It is not for the Court to identify causes of action which are not pleaded, but which the evidence might arguably support: see Forsyth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994. Both parties accepted this was the proper approach to an O 16 application.
(Page 6)
10 The first defendant's application was supported by two affidavits of Ronald Joseph Zappara ("Mr Zappara"), the first sworn 11 September 2003, the second sworn 13 November 2003. The plaintiffs relied upon an affidavit of the first-named plaintiff sworn 24 October 2003. In large measure there is no dispute between the parties on the facts.
11 At all material times the first defendant acted through Mr Zappara who was the project officer responsible for the assignment of the lease. It is clear Mr Zappara did not approve the advertising of the premises in the terms of the advertisement placed in the Carnarvon Classies. Indeed, it is Mr Zappara's evidence that he was unaware of the advertisement, or that the premises had been advertised as containing accommodation. Mr Zappara says that his involvement with the second, third and fourth defendants related to confirming the contractual requirements for the assignment of the lease of the premises to be approved. When requested he obtained approval of the assignment and he effected the assignment and variation of the lease deed. At no time was he asked about the residential aspect of the premises and he did not give advice to anyone on that subject.
12 The plaintiffs are not in a position to challenge Mr Zappara's affidavit. What they say is that Mr Zappara's evidence is largely irrelevant. They point to the fact that the first defendant has an office within 300 metres of the premises. They say that the fourth defendants and the fourth defendants' daughter and her boyfriend were "overtly" using the premises for residential purposes: see par 17 of the first-named plaintiff's affidavit. They say that as Carnarvon is a small community and, given the the location of the first defendant's Carnarvon office, officers of the first defendant must have known the premises were being used for residential purposes. The first-named plaintiff actually identifies two officers of the first defendant who he says must have known of the residential use being made of the premises: see par 25 of the first-named plaintiff's affidavit. Further, the plaintiffs say that the first defendant, through their agents or employees in Carnarvon, regularly received copies of the Carnarvon Classies: see par 27(b) of the first-named plaintiff's affidavit. That being so, the plaintiffs say, the first defendant, at least through its Carnarvon employees or agents, was aware of the misleading nature of the advertisement.
13 In my view there is clearly an arguable case on this point. As I have indicated, the evidence of Mr Zappara is uncontradicted and he says he had no knowledge of the occupancy of the premises. But I am satisfied, based on the evidence of the first-named plaintiff, that there is a serious
(Page 7)
- question to be tried as to whether the first defendant could be said to have had knowledge of the occupancy of the premises via its Carnarvon employees. I need say nothing more about this issue. I am satisfied that the plaintiffs' position is arguable.
14 The question then is whether or not silence on the part of the first defendant, given what its Carnarvon employees might have known, could amount to misleading and deceptive conduct under the Trade Practices Act. It is not in dispute that silence can, in certain circumstances, amount to misleading and deceptive conduct. There are numerous authorities which deal with that question and it was not seriously in dispute between the parties. The plaintiffs, for their part, submitted that whether or not silence could amount to misleading and deceptive conduct depended on the circumstances. They relied on what was said by French J in Kimberley NZI Finance Ltd v Torero Pty Ltd & Ors (1989) ATPR 46-054 at 53,195:
"The cases in which silence may be so characterised (as conduct in contravention of s 52) are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined. However, unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist."
15 The plaintiffs say that all of the facts of this case need to be examined before it can be determined whether or not the circumstances are such as to give rise to a reasonable expectation on the part of the plaintiff that the defendant would have told them that the premises could not be used for residential purposes. The plaintiffs say that it is arguable that the fact of present occupation, coupled with the advertisement, was sufficient to give rise to such a duty.
16 Without taking the matter further, I am satisfied that the plaintiffs' position is arguable. At this stage, without the benefit of hearing the witnesses and examining in detail the evidence of the parties, I could not conclude that, on the version of facts propounded by the plaintiffs, no duty arose. Once again, because of the risk of intruding on matters properly the domain of the trial Judge, I will say nothing further. In my view the plaintiffs' position is arguable.
(Page 8)
17 For these reasons I am not satisfied that there ought be judgment in favour of the first defendant. I would dismiss the first defendant's application and order that the costs of the application, including reserved costs, be costs in the cause.
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