Terranova v Auxil Pty Ltd

Case [2008] WADC 29

TERRANOVA & ANOR -v- AUXIL PTY LTD & ORS [2008] WADC 29


Link to Appeal :

DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2008] WADC 29
Case No:CIV:1297/20033-7 & 10 DECEMBER 2007
Coram:GOETZE DCJ21/02/08
PERTH
44Judgment Part:1 of 1
Result: Judgment for the plaintiffs in the sum of $131
117.36
Third party proceedings dismissed
PDF Version
Parties:SALVATORE TERRANOVA
ANGELINA TERRANOVA
AUXIL PTY LTD
THEODORUS CORNELIUS OUD
RODNEY BOYLE
CITYZONE HOLDINGS PTY LTD
FIMMANO CONSULTANCY SERVICES LIMITED
RICHARD GUY ALEXANDER HAYES

Catchwords:
Negligent mis­statement and misleading or deceptive conduct
Real estate agent wrongly advising semi­literate vendors that offer to purchase their land contained certain terms, which it did not, and in reliance of which, vendors accepted the offer
Whether plaintiffs entitled to damages and if so, method and timing of assessment of those damages
Third party claim by real estate agent against purchaser's representative seeking contribution and/or indemnity of damages payable to vendors

Legislation:
Fair Trading Act 1987
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Trade Practices Act 1974 (C'th)

Case References:
Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719
Ashford Shire Council v Dependable Motors Pty Ltd [1961] AC 336
Brockway & Anor v Pando & Anor (2000) 22 WAR 405
Butcher & Anor v Lachlan Elder Realty Limited (2004) 218 CLR 592
Campomar Sociedad Limitada & Anor v Nike International Ltd (2000) 202 CLR 45
Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601
ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 106 ALR 465
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] 133 CLR 72
Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994
Esso Petroleum Co Ltd v Mardon [1976] QB 801
FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) ATPR 41-176
Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd & Anor [1964] 2 QB 480
Gardner Corporation Pty Ltd v Zed Bears Pty Ltd & Ors [2003] WASC 13
Gates v City Mutual Life Assurance Society Ltd (1985-1986) 160 CLR 1
Geissler v Accro Motors Pty Ltd (1955) 73 WN (NSW) 31
Goold v Commonwealth of Australia & Anor (1993) 114 ALR 135
Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547
Havyn Pty Ltd v Webster [2005] NSWCA 182
Henjo Investments Pty Ltd & Ors v Collins Marrickville Pty Ltd (1989) 89 ALR 539
Henville v Walker (2001) 206 CLR 459
HW Thomson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667
Johnson v Perez (1988) 166 CLR 351
Jones v Dunkel (1959) 101 CLR 292
Lego Australia Pty Ltd v Paul's (Merchants) Pty Ltd (1982) ATPR 40-308
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR…

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Details
AGLC
Terranova v Auxil Pty Ltd [2008] WADC 29
Case
[2008] WADC 29
Decision Date

CaseChat Overview and Summary

The plaintiffs, Terranova, brought an action against Auxil Pty Ltd, a real estate agency, for negligent misstatement and misleading or deceptive conduct in relation to the sale of land. The case was heard in the Supreme Court of Queensland. The plaintiffs, who were semi-literate, alleged that the real estate agent had misled them by advising that an offer to purchase their land contained certain terms, which it did not. As a result of this advice, the plaintiffs accepted the offer. The plaintiffs sought damages and a third-party claim by the real estate agent against the purchaser's representative for contribution and/or indemnity of damages payable to the plaintiffs.

The primary legal issue for the court to determine was whether the plaintiffs were entitled to damages for the real estate agent's alleged negligent misstatement and misleading or deceptive conduct. A further issue was the method and timing of the assessment of those damages. Additionally, the court needed to consider the third-party claim by the real estate agent against the purchaser's representative.

The court found that the real estate agent had indeed made a negligent misstatement and engaged in misleading or deceptive conduct. The court held that the plaintiffs were entitled to damages and assessed them at $131,117.36. The court dismissed the third-party claim by the real estate agent against the purchaser's representative. The plaintiffs were awarded judgment in the sum of $131,117.36. The third-party proceedings were dismissed.

Orders

Orders of the court

Judgment for the plaintiffs in the sum of $131

117.36

Third party proceedings dismissed

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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