Ramsey v Vogler

[2000] NSWCA 260

CITATION:	Ramsey & Ors v Vogler [2000] NSWCA 260
FILE NUMBER(S):	CA 40197/99
HEARING DATE(S):	4 September 2000
JUDGMENT DATE:	13 October 2000
PARTIES :	Leicester Denis Ramsey (First Appellant) Kim Sue-Ellen Ramsey (Second Appellant) Welcome Waggon of Australia (NSW) Pty Limited ACN 068 767 233 (Third Appellant) Juanita Kay Vogler (Respondent)
JUDGMENT OF:	Mason P at 1; Stein JA at 2; Heydon JA at 52

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	EQ 1747/96
LOWER COURT JUDICIAL OFFICER :	Bryson J

COUNSEL:	P E King (Appellants) In Person (Respondent)
SOLICITORS:	P E King (Appellants) n/a (Respondent)
CATCHWORDS:	AGENCY - false representations - vicarious liabilty - agent acting within course of authority from principal - misleading and deceptive conduct - representations by telephone and post from Queensland received in New South Wales - whether conduct in New South Wales - D
LEGISLATION CITED:	Fair Trading Act 1987, ss 42, 68, 70(4)
CASES CITED:	Credit Lyonnais NV v ECGD [2000] 1 AC 486 Diamond v Bank of London & Montreal Ltd [1979] 1 QB 333 Distillers Co v Thompson [1971] AC 458 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485 Strike v Dive Queensland Inc (1998) ATPR 41 - 605 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
DECISION:	See para 51 for orders

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40197/99
EQ 1747/96
MASON P
STEIN JA
HEYDON JA

Friday, 13 October 2000

Leicester Denis RAMSEY & ORS v Juanita Kay VOGLER

Background

In the Supreme Court Leicester Ramsey, his wife Kim and a company they control, the Welcome Waggon of Australia (NSW) Pty Ltd (the plaintiffs), sued Juanita Vogler and John Davies. They sought a declaration that an agreement between the company and Ms Vogler was void and that the $70,000 paid under the agreement to Ms Vogler be repaid to them. By the agreement Ms Vogler sold to the company a business system for the operation in NSW of a greeting card service. The plaintiffs claimed that false representations made to them by Ms Vogler and Mr Davies had induced them into the agreement. Breaches of the Fair Trading Act 1987 (NSW) were also claimed.

At first instance

His Honour found that the conduct complained of took place in Queensland and the Fair Trading Act (NSW) had no extra-territorial effect. His Honour found that Mr Davies had made fraudulent representations which induced the execution of the agreement. There was no finding on the responsibility of Ms Vogler, as principal, for her agent, Mr Davies. Bryson J directed an inquiry as to damages by the Master. Amongst the orders made in his Honour’s judgment on costs was an order that Mr Davies pay Mr Ramsey’s costs of the proceedings. The appellant has been unable to locate Mr Davies.

The appeal

Mr Ramsey appeals against Ms Vogler…