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Townsend v Collova

Townsend v Collova

Case [2005] WASC 4 14 January 2005

Misleading or Deceptive Conduct

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TOWNSEND & ORS -v- COLLOVA & ORS [2005] WASC 4

Link to Appeal :

[2007] WASCA 40

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 4
Case No:	CIV:1880/2001	Heard:	2-8 APRIL, 19 AUGUST 2004
Coram:	LE MIERE J	Delivered:	14/01/05
No of pages:	45	Judgment Part:	1 of 1
Result:	Plaintiffs' claims fail and are dismissed
Category:	B
PDF Version

Parties:	ELLEN DALE TOWNSEND CAROLINE ADRIANA MORRIS RUBYLEA HOLDINGS PTY LTD (ACN 092 223 268) CARLO COLLOVA ROUSSETY & CO (WA) PTY LTD (ACN 056 022 130) STANLEY JOHN PILKADARIS
Catchwords:	Claim for damages Contract Tort Misleading and deceptive conduct Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (WA) Breach of fiduciary duty Contract claim Whether contract of retainer exists Actions of defendants not in pursuance of contractual undertaking Misleading or deceptive conduct Section 52 Trade Practices Act Section 10 Fair Trading Act Conduct of third defendant deemed to be conduct of second defendant Conduct in trade or commerce Whether conduct was misleading Silence and nondisclosure Inadvertent silence Conduct of defendant contravened s 52 Defendant knowingly involved in contravention Claim for damages Reliance Tortious claim Duty of care Negligent misstatement Reliance Equitable claim Breach of fiduciary duty Whether fiduciary relationship exists Scope of fiduciary relationship No relevant fiduciary duty
Legislation:	Fair Trading Act 1987 (WA), s 10, s 79 Trade Practices Act 1974 (Cth), s 4(2)(a), s 4(2)(c), s 51A, s 52, s 75B, s 82, s 84
Case References:	Como Investments Pty Ltd (In Liq) v Yenald Nominees Pty Ltd (1997) ATPR 31 550 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Gould v Vaggelas (1985) 157 CLR 215 Hamilton v Whitehead (1988) 166 CLR 121 Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 Henville v Walker (2001) 206 CLR 459 Hill v Van Erp (1997) 188 CLR 159 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) HCA 41; (2002) 210 CLR 109 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110. Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Mohr & Mohr v Cleaver & Cleaver (1986) WAR 67 New Zealand Netherlands Society "Oranje" Inc v Kuys (1973) 1 WLR 1126 Pavan v Ratnam (1996) 23 ACSR 214 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 San Sebastian Pty Ltd v Minister Administering Environmental Planning Act (1986) 162 CLR 340 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Sutton v A J Thompson Pty Ltd (in liq) (1987) 73 ALR 233 Sutton v A J Thompson Pty Ltd (In liq) (1987) 73 ALR 233 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 White v Jones [1995] 2 AC 207 Yorke v Lucas (1985) 158 CLR 661 Astley v Austrust Ltd (1999) 197 CLR 1 Beach Petroleum…

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 Townsend v Collova

Details

AGLC: Townsend v Collova [2005] WASC 4
Case: [2005] WASC 4
Decision Date

CaseChat Overview and Summary

This case involved a claim by the plaintiffs, Ellen Dale Townsend, Caroline Adriana Morris and Rubylea Holdings Pty Ltd, against Carlo Collova, Roussety & Co (WA) Pty Ltd and Stanley John Pilkadaris. The plaintiffs claimed that the defendants had made false or misleading representations to them concerning a proposed investment in a franchise business. The plaintiffs sought to recover their losses in contract, tort, under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987 (WA) and for breach of fiduciary duty. The Supreme Court of Western Australia found that the plaintiffs' claims failed and were dismissed. The court found that there was no contract of retainer between the plaintiffs and the defendants. The court also found that the third defendant's conduct did not amount to misleading or deceptive conduct as there was no causal connection between the plaintiffs' error and the defendant's conduct. The court further found that the plaintiffs had not established that they relied on the third defendant's statements in proceeding with the investment. Finally, the court found that the third defendant did not owe a duty of care to the plaintiffs and that there was no relevant fiduciary duty. The court dismissed the plaintiffs' claims and awarded no damages.

Orders