Smolonogov v O'Brien

[1982] FCA 203

Re: PAUL SMOLONOGOV and ADRIAN LAPARDIN
And: RAYMOND LAWRENCE O'BRIEN and BARBARA ANNETTE O'BRIEN (1982) 67 FLR 311
No. G167 of 1981
Trade Practices - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Trade Practices - Consumer Protection - Alleged false or misleading statements concerning land - Action against individuals - Alleged statements made in course of telephone conversation following advertisement - Subsequent conversation at respondents' home followed by contract - Whether statements false or misleading - Whether made "in trade or commerce" - Damages - Whether entry into contract caused by representations in telephone conversation

Trade Practices Act, ss.6(3), 53A(1) (b)

Evidence - Similar facts - Similar false representations made by respondent to another intending purchaser shortly prior to alleged misrepresentations relating to similar adjoining land - Whether admissible.

Trade Practices - Consumer protection - False or misleading statements re sale of land - Statements made in telephone conversation by individual - Whether made "in trade or commerce" - Whether causation of loss or damage - Measure of damages - Similar fact evidence - Trade Practices Act 1974 (Cth), ss 6(3), 53A(1)(b), 82, 87.

HEADNOTE

Following discussions and negotiations between the applicants and one of the respondents, including a telephone conversation during which the respondent was alleged to have made false and misleading statements in relation to certain land which had been advertised for sale by him, the applicants entered into a contract to purchase the land and paid a deposit. The applicants, both individuals, claimed damages under s. 82 of the Trade Practices Act 1974 (Cth), and a declaration that the contract was void, and relied on s. 53A(1)(b) as extended by s. 6(3) because the false and misleading statements were made in the course of a telephone conversation.

Held: (1) Where the interest of the public at large is invited in the proposed sale of land, as was done here by the placing of advertisements in the newspaper, followed by negotiations and discussions with persons responding to the advertisements, the conduct is appropriately described as being in trade or commerce. It would be difficult, however, to describe the sale of land by private contract, without more, as occuring "in trade or commerce".

Re Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134 , referred to.

(2) The conversation between the applicants and the respondent, in the circumstances of this case, took place "in trade or commerce" within the meaning of s. 53A. Because that conversation involved the use of telephonic services, s. 6(3) operated to extend s. 53A(1)(b) to the conduct of the respondents, notwithstanding that they are individuals.

(3) In the phrase "a person who suffers loss or damage by conduct" in s. 82, the word "by" clearly means "by reason of" or "as a result of". However, it is not necessary that the conduct be the only contributing cause to the loss or damage; it is sufficient if the conduct (in this case,…