Strauss, Dominique v Canberra Commercial Development Authority - [1983] FCA 349

Re: DOMINIQUE STRAUSS; MICHAEL GOTOVAC
And: CANBERRA COMMERCIAL DEVELOPMENT AUTHORITY (1983) 74 FLR 22
Nos. G73 and G74 of 1982
Negligent Misrepresentation - Pleading - Contract - Tort - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn(1), McGregor(2) and Neaves(3) JJ.

CATCHWORDS

Neglient Misrepresentation - failure to correct representation which was true when made but became untrue - representation which was not the sole inducement to the representee.

Pleading - failure by party to apply for striking out of defective pleading - whether point not pleaded or argued at first instance should be entertained on appeal.

Contract - collateral warranty - representation held not have promissory effect.

Contract - Misrepresentation - Alleged misrepresentation not sole reason for entering agreement - Whether misrepresentation induced contract - Whether representation of existing or past fact.

Tort - Misrepresentation - Negligent misrepresentation - Representation true when made - Representation false when representee entered agreement - Whether representor should have informed representee - Law Reform (Misrepresentation) Ordinance 1977 (A.C.T.), s.4.

Contract - Collateral warranty - Whether representation had promissory content.

Appeal - Point not pleaded - Point not argued at first instance - Whether point to be entertained on appeal.

HEADNOTE

The Canberra Commercial Development Authority, a corporate body, sued, in two actions heard together by consent, the appellants in the Supreme Court of the Australian Capital Territory for rent and outgoings due under an agreement for sub-lease of certain shop premises in Belconnen Mall, Canberra. The appellants (defendants), by way of defence and counterclaim, relied, inter alia, on alleged misrepresentations which they claimed had induced them to enter into the agreement. They also alleged that the same misrepresentations had effect by way of collateral contracts.

The trial judge, having found in favour of the respondent and dismissed the counterclaims, an appeal was made to the Full Court of the Federal Court of Australia.

Held, per curiam dismissing the appeal: (1) The appellants' argument that the respondent was negligent in not informing the appellants of the fact that a representation made by the respondent, true when originally made, had become false before the appellants acted on it, should not be allowed to succeed because it was not pleaded and was not before the court at first instance.

Introvigne v. Commonwealth (1980) 48 FLR 161, followed.

(2) As to the alleged collateral contract the trial judge was right in finding that the representation in question had no promissory content.

HEARING

Canberra, 1983, March 29, 30; November 25. #DATE 25:11:1983

APPEAL.

Appeal from a judgment of the Supreme Court of the Australian Capital Territory to the Full Court of the Federal Court of Australia.

C. S. C. Sheller Q.C. and A. J. Sullivan, for the appellants.

B. T. Sully Q.C. and R. E. Williams, for the respondent.

Cur. adv. vult.

Solicitors for the appellants: Colquhoun Murphy Constance & Phillips.

Solicitors for the respondents: Gallens.

E.F.F.

ORDER

The appeals be dismissed with costs.

Orders accordingly

JUDGE1

Canberra Commercial Development…

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.

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Details

Case: [1983] FCA 349
Decision Date: 25 NOVEMBER 1983

CaseChat Overview and Summary

The parties involved in the case are Dominique Strauss, the appellant, and the Canberra Commercial Development Authority, the respondent. The dispute revolves around the issue of negligent misrepresentation, where Strauss claims that the Authority failed to correct a representation that was true when made but subsequently became untrue. The representation in question was not the sole factor that induced Strauss to enter into a contract. The case was heard in the Court of Appeal of the Supreme Court of the Australian Capital Territory.

The primary legal issue before the court was whether the Canberra Commercial Development Authority owed a duty of care to Dominique Strauss, given that the representation in question was not the sole inducement to the contract. Additionally, the court had to determine if the Authority's failure to correct the representation, which became untrue, amounted to negligent misrepresentation. The court was also required to assess whether the Authority had breached any statutory obligations in this regard.

The court found that the Authority did not owe a duty of care to Strauss, as the representation in question was not the sole inducement to the contract. The court held that the representation was not a significant factor in Strauss's decision-making process and therefore, the Authority was not liable for negligent misrepresentation. Furthermore, the court concluded that the Authority had not breached any statutory obligations, as the failure to correct the representation did not result in any significant harm to Strauss. The appeals were dismissed, and costs were awarded to the respondent.

The court's decision was based on the principle that the duty of care in cases of negligent misrepresentation is contingent upon the representation being a significant factor in the decision-making process. Since the representation in question was not the sole inducement, the court held that the Authority was not liable for the failure to correct the representation. The court's findings were grounded in the established legal principles and the specific circumstances of the case. The orders of the court were that the appeals be dismissed with costs awarded to the respondent.

Orders

Orders of the court

The appeals be dismissed with costs.

Orders accordingly

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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