Stewart v White

Case [2011] QCA 291

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 2007

DIVISION:

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 made

ORDER:

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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Details
AGLC
Stewart v White [2011] QCA 291
Case
[2011] QCA 291
Decision Date

CaseChat Overview and Summary

In the case of Stewart v White, the respondent, Mr White, entered into a joint venture agreement with the appellant, Mr Stewart, a mortgage broker, for the purpose of purchasing three parcels of land for investment. Mr White relied on the appellant’s representations that the venture would be profitable. The joint venture agreement contained exclusion clauses, which raised questions about the extent to which these clauses could cover liability for pre-contractual negligent advice or representations concerning the profitability of the proposed venture. Additionally, the appellant, as the sole director of a company, was held liable at first instance for misleading and deceptive conduct, with the appellant being found to be knowingly concerned in the company's misleading and deceptive conduct under section 75B(1)(c) of the Trade Practices Act 1974 (Cth). The appellant contested the primary judge's findings, arguing that they were insufficient to ground liability and that there was a failure to make a finding of fact regarding the appellant's knowledge about the reasonableness of the representation.

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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