Taylor v Gosling - [2010] VSC 75

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8804 of 2003

NEIL TAYLOR and ADELE TAYLOR	Plaintiffs
v
GARRY LLOYD GOSLING & Ors (According to the schedule attached)	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 September, 1, 5‑7 and 13 October 2009
DATE OF JUDGMENT:	15 March 2010
CASE MAY BE CITED AS:	Taylor v Gosling
MEDIUM NEUTRAL CITATION:	[2010] VSC 75

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TRADE PRACTICES – Representation that loan involved no risk – Representation misleading – Whether representation relied upon – Held: representation relied upon and caused loss to the plaintiffs.

PROPORTIONATE LIABILITY – Proceeding commenced against three defendants before commencement of Part IVAA of the Wrongs Act 1958 (Vic) – Fourth defendant added after commencement of Part IVAA – Whether Part IVAA applied to the proceeding against added defendant – Held: Part IVAA of no application to the proceeding – Wrongs Act 1958 (Vic), ss 24AI, 24AJ and 24AS – Supreme Court (General Civil Procedure) Rules 2005, r 9.11(3)(a), (c) ‑ Premier Building and Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 111, [34](b) not followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R E T Wodak	Tisher Liner & Co
For the Fourth Defendant	Mr J S Graham	Anne Hodgson & Co

TABLE OF CONTENTS

Parties and Introduction................................................................................................................... 2

Factual narrative................................................................................................................................. 5

Did Mr Gosling mislead Mr and Mrs Taylor?........................................................................... 34

Did Mr and Mrs Taylor rely on Mr Gosling’s misleading conduct in deciding to invest? 38

Can Mr Gosling escape liability on the basis he acted as a mere ‘corporate organ’ of IBP? 42

Is Mr Gosling liable as a person involved in misleading conduct by IBP?......................... 43

Does the proportionate liability regime apply to the claims against Mr Gosling?............ 44

Is Mr Gosling entitled to seek contribution or indemnity from Mr Pennicott?.................. 47

What is the quantum of the loss suffered by Mr and Mrs Taylor?........................................ 48

HIS HONOUR:

Parties and Introduction

The plaintiffs are Neil Taylor and his wife Adele Taylor. They are both retired. Mr Taylor worked as a schoolteacher for most of his working life. There was a period when he pursued his love of music as a career. Mrs Taylor worked as a secretary for most of her working life. Towards the end of her career, she worked in an administrative capacity.

In April 2002, Mr and Mrs Taylor were nearing the end of their working lives. A year or two earlier, they had commenced planning for their retirement. They read some investment books and talked with friends and work colleagues about investment issues. They were inexperienced investors. At this time, Mr and Mrs Taylor owned their home without any encumbrances, worth about $300,000. They also owned a car each and had some small shareholdings worth about $20,000. They had combined superannuation entitlements of about $180,000.

The fourth defendant, Garry Lloyd Gosling, is and was at all relevant times experienced in business and…

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: [2010] VSC 75
Decision Date: 15 March 2010

CaseChat Overview and Summary

In Taylor v Gosling, the plaintiffs, Mr and Mrs Taylor, pursued legal action against Mr Gosling and three other defendants, alleging misleading representations regarding a loan agreement. The dispute arose from a situation where the defendants had assured the plaintiffs that their loan involved no risk, which the plaintiffs later discovered to be false. This misrepresentation led to financial losses for the plaintiffs. The case was heard in the Supreme Court of Victoria.

The primary legal issues that the court needed to resolve were whether the plaintiffs had relied on the misleading representation and whether the misleading representation caused their loss. Additionally, the court had to determine the applicability of Part IVAA of the Wrongs Act 1958 (Vic) to the proceedings against the fourth defendant, who was added to the suit after Part IVAA came into effect.

The court found that the plaintiffs had indeed relied on the misleading representation that the loan carried no risk, and this reliance directly caused their financial losses. Regarding the applicability of Part IVAA, the court held that this part of the statute did not apply to the proceeding against the fourth defendant. This decision distinguished the case from Premier Building and Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 111, [34](b), which had previously suggested a broader application of Part IVAA.

The court's final orders were to hold the defendants liable for the misleading representation and to determine that Part IVAA of the Wrongs Act 1958 (Vic) did not apply to the fourth defendant's inclusion in the proceedings. This outcome underscored the importance of clear and accurate representations in financial transactions and clarified the scope of Part IVAA in relation to proceedings initiated before and after its commencement.

Orders