SUPREME COURT OF QUEENSLAND
CITATION:
Stewart v White [2011] QCA 291
PARTIES:
DOUGLAS IAN STEWART
(appellant)
v
WARREN HOWARD WHITE
(respondent)FILE NO/S:
Appeal No 4037 of 2011
SC No 2183 of 2007DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
18 October 2011
DELIVERED AT:
Brisbane
HEARING DATE:
15 September 2011
JUDGES:
Margaret McMurdo P, Muir JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed with costs.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ACTS OR OMISSIONS – where the respondent client entered into a joint venture agreement with the appellant mortgage broker to purchase three parcels of land for investment purposes – where the respondent relied upon representations made by the appellant that the venture would be profitable – where the joint venture agreement contained exclusion clauses – whether the agreement covered liability for pre-contractual negligent advice or representations concerning the profitability of the proposed venture
TRADE AND COMMERCE – TRADE PRACTICES ACT (1974) CTH AND RELATED LEGISLATION –CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the appellant was the sole director of a company – where the company was held liable at first instance for misleading and deceptive conduct – where the appellant was held to be liable for being knowingly concerned in the company’s misleading and deceptive conduct pursuant to s 75B(1)(c) of the Trade Practices Act 1974 (Cth) – where the appellant submitted that the primary judge’s findings were insufficient to ground liability – whether the primary judge failed to make a finding of fact – whether the appellant knew that there was no reasonable grounds for making the representation
Trade Practices Act 1974 (Cth), s 51A, s 52, s 53A, s 75B
Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439, considered
Business & Professional Leasing Pty Ltd v Dannawi [2008] NSWSC 902, cited
Canada Steamship Lines Ltd v The King [1952] AC 192, cited
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500; [1986] HCA 82, cited
Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642; [1954] HCA 44, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Hatt v Magro (2007) 34 WAR 256; [2007] WASCA 124, cited
HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] 2 Lloyd’s Rep 61; [2003] UKHL 6, cited
King v GIO Australia Holdings Ltd (2001) 184 ALR 98; [2001] FCA 308, cited
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd [1994] FCA 940; (1994) ATPR 41-315, cited
Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1; [2004] FCAFC 175, considered
Robertson Street Properties Pty…
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- AGLC
- Stewart v White [2011] QCA 291
- Case
- [2011] QCA 291
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the exclusion clauses in the joint venture agreement could absolve the appellant from liability for any negligent advice or misrepresentations made before the agreement was formed. Additionally, the court had to consider whether the primary judge's findings were adequate to hold the appellant liable for the company's misleading and deceptive conduct under the Trade Practices Act. The appellant argued that there was no evidence to show that he knew there were no reasonable grounds for making the representation, and thus, the findings were insufficient.
The court dismissed the appeal and ruled that the primary judge’s findings were sufficient to hold the appellant liable for the misleading and deceptive conduct. The exclusion clauses in the joint venture agreement did not absolve the appellant from liability for negligent advice or misrepresentations made before the agreement was executed. The court found that the appellant was indeed knowingly involved in the misleading and deceptive conduct of the company, and therefore, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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