Structured Property Pty Ltd v Tirli-Bennett - [2010] VSC 129

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS

S CI 2009 7006

STRUCTURED PROPERTY PTY LTD (ACN 104 477 858)	Appellant
v
SEMRA TIRLI-BENNETT	Firstnamed Respondent
and
THE MAGISTRATES' COURT OF VICTORIA	Secondnamed Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2010
DATE OF JUDGMENT:	16 April 2010
CASE MAY BE CITED AS:	Structured Property Pty Ltd v Tirli-Bennett & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 129

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TRADE PRACTICES – MAGISTRATES’ COURT - Appeal under s 109 of the Magistrates’ Court Act 1989 – Alleged breach of s 9 Fair Trading Act 1985, ss 6(3), 52 Trade Practices Act 1974 (Cth) - Claim for damages under s 159 Fair Trading Act 1985, s 82 Trade Practices Act 1974 (Cth) - Purchase of rent roll – Representations as to likely losses of landlords - Whether conduct misleading or deceptive - Whether representations in trade or commerce – Loss of a commercial opportunity – Assessment of loss.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. D. Catlin	Bleyer Lawyers Pty Ltd
For the First Respondent	Mr A. M. Beck-Godoy	Voitins Lawyers

HER HONOUR:

This is an appeal from a decision of the Magistrates’ Court at Melbourne on 8 May 2009 dismissing a claim by the appellant (‘Structured’) for damages under s 159 of the Fair Trading Act 1985 (‘the FTA’) and s 82 of the Trade Practices Act 1974 (Cth) (‘the TPA’) against the first respondent (‘Ms Bennett’). Structured sought damages from Ms Bennett for her alleged misleading or deceptive conduct in breach of s 9 of the FTA and s 52 of the TPA, respectively.

The TPA claim was brought under s 6(3) of the TPA because the alleged misleading or deceptive conduct was said to have occurred in the course of a telephone conversation between Ms Bennett and Mr Stefan Deffert, a director of Structured.

Structured alleged that Ms Bennett had engaged in the impugned conduct by making a misrepresentation about likely losses from a ‘rent roll’ which it had purchased on about 6 March 2008 from Insight Investment Corporation Pty Ltd (in liquidation) (‘Insight’). Structured claimed to have suffered loss and damage as a result of having purchased the rent roll acting in reliance upon Ms Bennett’s alleged misrepresentations about the losses. It sought compensation for loss of ‘management income’ and the alleged resale value of the rent roll.

The Magistrate’s findings

The learned Magistrate received oral evidence from Ms Bennett and Mr Deffert. He concluded that, ‘by and large’ each ‘presented as a credible and candid witness’.

His Honour made findings of fact, including the following, that:

· Ms Bennett had been Insight’s property manager and had created its rent roll business in the 18 months before her employment was terminated on Friday 22 February 2008 as a result of Insight’s liquidation;

· the rent roll was a list of properties of which Insight was the managing agent;

· Insight’s…

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.

Continue reading Structured Property Pty Ltd v Tirli-Bennett

Details

AGLC: Structured Property Pty Ltd v Tirli-Bennett [2010] VSC 129
Case: [2010] VSC 129
Decision Date: 16 April 2010

CaseChat Overview and Summary

Structured Property Pty Ltd, a property investment company, initiated proceedings against Tirli-Bennett, a property consultant, in the Magistrates’ Court. The dispute arose from the sale of a rent roll, where Structured Property alleged that Tirli-Bennett made misleading and deceptive representations regarding the potential losses of the landlords involved in the transaction. The case was an appeal under section 109 of the Magistrates’ Court Act 1989, involving claims for damages under the Fair Trading Act 1985 and the Trade Practices Act 1974 (Cth). The central legal issues were whether Tirli-Bennett’s conduct constituted misleading or deceptive conduct within the meaning of the Trade Practices Act, and if the representations were made in the course of trade or commerce. Additionally, the court had to determine whether Structured Property's loss of a commercial opportunity could be quantified as damages.

The Magistrates’ Court examined the nature of the representations made by Tirli-Bennett and assessed whether these were misleading or deceptive. The court noted that the representations pertained to the potential losses landlords might incur, which were significant factors influencing Structured Property’s decision to purchase the rent roll. The court held that the representations were indeed misleading or deceptive as they were not based on reasonable grounds and failed to accurately reflect the potential losses. Furthermore, the court found that these representations were made in the course of trade or commerce, as Tirli-Bennett was acting as a property consultant during the transaction. The court then turned to the issue of damages, acknowledging Structured Property's loss of a commercial opportunity but found that the evidence provided was insufficient to precisely quantify the loss.

In conclusion, the Magistrates’ Court determined that Tirli-Bennett’s conduct constituted misleading or deceptive conduct under the Trade Practices Act and that the representations were made in the course of trade or commerce. However, the court dismissed Structured Property’s claim for damages due to insufficient evidence to accurately determine the extent of the loss. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates’ Court for further consideration of the damages claim.

Orders