Tomlinex Pty Ltd v Candoura Pty Ltd - [1992] FCA 156

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IN THE FEDERAL COURT OF AUSTRALIA ) I '
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SOUTH AUSTRALIAN DISTRICT REGISTRY ! 1
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GENERAL DIVISION
BETWEEN:
TOMTJNEX PTY LTD I
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Applicant
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W O U R A PTY LTD.

RECEIVED BULLOCK MOUNTAIN MINING
PTY LTD.
JOHN CLIVB: COLLINS,
FEDERAL COURT OF IRIS MIY COLLINS and

AUSTRALIA MARGARET IRENE HOWELL
Respondents
EX TEMPORE REASONS FOR JUDGbENT

Coram: von Doussa J.

Date : 5 March 1992 ! .

The applicant claims damages from each of the respondents alleging that it was induced to enter into an option agreement

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on 18 June 1988 by reason of false and misleading statements 1
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made by the respondents through their agent the third !
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respondent, John Clive Collins. The causes of action pleaded I

of the Misre~resentation Act 1971-1972 (S.A.). That section

include a claim under s.82 of the Trade Practices Act 1974 against the first and second respondents in respect of an alleged contravention of s.52 of the Trade Practices Act, and a claim under s.75B of the Trade Practices Act against the third respondent on the ground that he was a party involved in the contravention of s.52 by the first two respondents. There is also a claim made against all respondents pursuant to s.7

gives a cause of action for damages to a contracting party induced to enter into a contract by innocent misrepresentations made by or on behalf of the other contracting party.
The application was issued on 7 June 1989. Thereafter the proceedings progressed slowly. By consent, on 22 September 1989 (the day on which the respondents filed an appearance), lengthy orders giving directions for the future conduct of the case were made. Paragraph 7 of those directions included provision for the trial of the action in due course to be held primarily upon af fidavit. A time-table was set for all procedural steps including the filing of affidavits by both sides. The time-table was at no stage met. There were initial delays during the latter part of 1989 which culminated in the filing of an amended statement of claim in December 1989. A defence was not filed until June 1990. Revised directions were given for the filing of the applicant's affidavits. Time was extended on several occasions

thereafter to enable that exercise to be completed. It is fair to say that the applicant ran into a number of
difficulties which were not of the making of the applicant's
solicitors.

The applicant's affidavits were not completed until September 1991. Directions were then made for the respondents to file their affidavits by 22 November 1991. That time limit was not met. No affidavits had been filed by the respondents

when the matter came on again for directions on 27 November 1991. An order was made further extending…

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 Tomlinex Pty Ltd v Candoura Pty Ltd

Details

AGLC: Tomlinex Pty Ltd v Candoura Pty Ltd [1992] FCA 156
Case: [1992] FCA 156
Decision Date: 5 Mar 1992

CaseChat Overview and Summary

In Tomlinex Pty Ltd v Candoura Pty Ltd, the plaintiff sought damages from the defendants for alleged misleading statements made by the defendants' agent, which induced the plaintiff to enter into an option agreement. The plaintiff, Tomlinex Pty Ltd, claimed that the defendants, Candoura Pty Ltd and Bullock Mountain Mining Pty Ltd, as well as their agent, John Clive Collins, made false and misleading statements regarding the availability of mining lease applications on 18 June 1988. These statements allegedly induced Tomlinex to enter into an option agreement with Barkuna Pty Ltd. The claim included actions under the Trade Practices Act 1974 and the Misrepresentation Act 1971-1972 (S.A.). The defendants did not participate in the proceedings, leading to the case being heard in their absence.

The court had to decide whether the defendants' conduct constituted misleading or deceptive conduct under s.52 of the Trade Practices Act and whether the misrepresentations induced Tomlinex to enter into the option agreement. The court also had to determine the appropriate quantum of damages. The court found that the defendants' statements about the imminent issuance of mining lease applications were false and misleading, and this conduct was indeed in trade or commerce. The court held that the misrepresentations induced Tomlinex to enter into the option agreement and awarded damages equivalent to the amount paid under the agreement plus interest.

The court ordered that Tomlinex be repaid the $250,000 paid to Barkuna and an additional $940 for late payment interest, totalling $250,940. Additionally, the court awarded $150,000 in interest under s.51A of the Federal Court of Australia Act 1976, bringing the total judgment to $400,940 plus costs. The court ruled in favour of Tomlinex, ordering the defendants to pay the total amount as damages for the misleading and deceptive conduct.

Orders