Rapid Roofing Pty Ltd v Natalise Pty Ltd - [2007] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

Rapid Roofing P/L & Ors v Natalise P/L & Ors [2007] QCA 94

PARTIES:

RAPID ROOFING PTY LTD ACN 088 568 165
(first plaintiff/first respondent)
ALLAN LEO GEORGE ERNESTINE and
MARY-ALISE PARQUETT ERNESTINE
(second plaintiffs/second respondents)
v
NATALISE PTY LTD ACN 094 771 954
AS TRUSTEE FOR THE ST ANGE FAMILY TRUST
(first defendant/first counter claimant/first appellant)
JOSE ST ANGE and MICHELLE ST ANGE
(second defendants/second counter claimants/second appellants)

FILE NO/S:

Appeal No 8388 of 2006
DC No 115 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

23 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2007 and 14 March 2007

JUDGES:

Williams and Keane JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. The defendants' appeal should be allowed, and the following orders made:
(a) set aside declarations and orders made below;
(b) set aside the dismissal of the counterclaim;
(c) the contract of sale is avoided from 31 October 2001, and the first plaintiff is to repay to the first defendant the sum of $151,295 and the defendants are to release to the plaintiffs all machinery and property noted in the bills of lading;
(d) the first plaintiff is to pay to the second defendant interest on the sum of $151,295 from 31 October 2001 at the rate of seven per cent per annum pursuant to s 47 of the Supreme Court Act 1995 (Qld);
(e) set aside the order for costs of the trial, and order instead that the plaintiffs pay 75 per cent of the defendants' costs of the trial
2. The plaintiffs should pay the defendants' costs of the appeal

CATCHWORDS:

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - PERFORMANCE - where contract between plaintiffs and defendants provided for discharge of mortgage over plaintiffs' property upon delivery of machinery to the defendants - where plaintiffs failed to deliver machinery on time and failed to insure machinery - whether plaintiffs in breach of contract - whether plaintiffs entitled to discharge of mortgage

TORTS - TROVER AND DETINUE - REMEDIES - ACTION FOR CONVERSION - DAMAGES - IN GENERAL - where plaintiffs shipped to defendants personal and partnership property in same container - where defendants refused to return property unless plaintiffs paid port charges - whether plaintiffs entitled to damages for conversion

DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING DAMAGES - where plaintiffs succeeded in claim for damages for detention of personal property - where claim based on loss of profits from sales to particular company - whether plaintiffs established that detention had resulted in loss

TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE MISREPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION - RELIANCE, INDUCEMENT AND CAUSATION - where plaintiffs made representation to defendants…

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.

Keep reading for free

Create a free CaseChat account to read Rapid Roofing Pty Ltd v Natalise Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] QCA 94
Decision Date: 23 March 2007

CaseChat Overview and Summary

Rapid Roofing Pty Ltd, as plaintiffs, sought a declaration that they were entitled to the discharge of a mortgage over their property, damages for conversion of their property, and damages for detention of personal property, against Natalise Pty Ltd, as defendants. The defendants, in turn, sought relief under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct and false misrepresentations by the plaintiffs. The defendants argued that the plaintiffs were in breach of the contractual terms for delivering machinery, and the plaintiffs were not entitled to the discharge of the mortgage. The defendants also claimed that the plaintiffs made misrepresentations as to the value of the machinery, which led to the defendants entering into the contract. The plaintiffs, on the other hand, argued that they were not in breach of the contract and that they were entitled to the discharge of the mortgage. The court had to determine whether the plaintiffs were in breach of the contract, whether the plaintiffs were entitled to the discharge of the mortgage, whether the plaintiffs made misleading and deceptive conduct or false misrepresentations, and whether the defendants were entitled to relief under the Trade Practices Act 1974 (Cth). The court found that the plaintiffs were in breach of the contract as they failed to deliver the machinery on time and failed to insure it. The court also found that the plaintiffs made misleading and deceptive conduct and false misrepresentations. Therefore, the court avoided the contract from 31 October 2001, set aside the dismissal of the counterclaim, ordered the first plaintiff to repay to the first defendant the sum of $151,295 and the defendants to release to the plaintiffs all machinery and property noted in the bills of lading, ordered the first plaintiff to pay interest on the sum of $151,295 from 31 October 2001 at the rate of seven per cent per annum, set aside the order for costs of the trial, and ordered that the plaintiffs pay 75 per cent of the defendants' costs of the trial. The court also ordered that the plaintiffs pay the defendants' costs of the appeal.

Orders

Orders of the court

1. The defendants' appeal should be allowed, and the following orders made:

(a) set aside declarations and orders made below;

(b) set aside the dismissal of the counterclaim;

(c) the contract of sale is avoided from 31 October 2001, and the first plaintiff is to repay to the first defendant the sum of $151,295 and the defendants are to release to the plaintiffs all machinery and property noted in the bills of lading;

(d) the first plaintiff is to pay to the second defendant interest on the sum of $151,295 from 31 October 2001 at the rate of seven per cent per annum pursuant to s 47 of the Supreme Court Act 1995 (Qld);

(e) set aside the order for costs of the trial, and order instead that the plaintiffs pay 75 per cent of the defendants' costs of the trial

2. The plaintiffs should pay the defendants' costs of the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rapid Roofing P/L & Ors v Natalise P/L & Ors [2007] QCA 94
PARTIES:	RAPID ROOFING PTY LTD ACN 088 568 165 (first plaintiff/first respondent) ALLAN LEO GEORGE ERNESTINE and MARY-ALISE PARQUETT ERNESTINE (second plaintiffs/second respondents) v NATALISE PTY LTD ACN 094 771 954 AS TRUSTEE FOR THE ST ANGE FAMILY TRUST (first defendant/first counter claimant/first appellant) JOSE ST ANGE and MICHELLE ST ANGE (second defendants/second counter claimants/second appellants)
FILE NO/S:	Appeal No 8388 of 2006 DC No 115 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	23 March 2007
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2007 and 14 March 2007
JUDGES:	Williams and Keane JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. The defendants' appeal should be allowed, and the following orders made: (a) set aside declarations and orders made below; (b) set aside the dismissal of the counterclaim; (c) the contract of sale is avoided from 31 October 2001, and the first plaintiff is to repay to the first defendant the sum of $151,295 and the defendants are to release to the plaintiffs all machinery and property noted in the bills of lading; (d) the first plaintiff is to pay to the second defendant interest on the sum of $151,295 from 31 October 2001 at the rate of seven per cent per annum pursuant to s 47 of the Supreme Court Act 1995 (Qld); (e) set aside the order for costs of the trial, and order instead that the plaintiffs pay 75 per cent of the defendants' costs of the trial 2. The plaintiffs should pay the defendants' costs of the appeal
CATCHWORDS:	CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - PERFORMANCE - where contract between plaintiffs and defendants provided for discharge of mortgage over plaintiffs' property upon delivery of machinery to the defendants - where plaintiffs failed to deliver machinery on time and failed to insure machinery - whether plaintiffs in breach of contract - whether plaintiffs entitled to discharge of mortgage TORTS - TROVER AND DETINUE - REMEDIES - ACTION FOR CONVERSION - DAMAGES - IN GENERAL - where plaintiffs shipped to defendants personal and partnership property in same container - where defendants refused to return property unless plaintiffs paid port charges - whether plaintiffs entitled to damages for conversion DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING DAMAGES - where plaintiffs succeeded in claim for damages for detention of personal property - where claim based on loss of profits from sales to particular company - whether plaintiffs established that detention had resulted in loss TRADE AND COMMERCE - TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE MISREPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION - RELIANCE, INDUCEMENT AND CAUSATION - where plaintiffs made representation to defendants…