Vigolo v Boston & Ors - [2004] HCATrans 406

[2004] HCATrans 406

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P30 of 2004

B e t w e e n -
VIRGINIO VIGOLO
Appellant
and
WANDA MARY BOSTIN & LEOPOLDO VIGOLO (AS EXECUTORS OF THE WILL OF LINO VIGOLO DECEASED)
First Respondents
WANDA MARY BOSTIN

Second Respondent

LEOPOLDO VIGOLO

Third Respondent

NANCY CUNNINGHAM

Fourth Respondent

SANDRA GANGELL

Fifth Respondent

GLEESON CJ
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 25 OCTOBER 2004, AT 10.17 AM

__________________

MR R.I. VINER, QC: If it please the Court, I appear with my learned friend, MR P. MENDELOW, for the appellant. (instructed by SS Chohaan)

MR M.J. BUSS, QC: May it please the Court, with my learned friend, MR L.A. TSAKNIS, I appear for the respondents. (instructed by Hudson Henning & Goodman)

GLEESON CJ: Yes, Mr Viner.

MR VINER: If your Honour pleases, there is a notice of motion to amend the notice of appeal which is dated 3 August 2004.

GLEESON CJ: Is that opposed, Mr Buss?

MR BUSS: No, it is not, your Honour.

GLEESON CJ: You have that leave. You will need to formally make the amendment.

MR VINER: Yes, I will see that that is done. There is one small housekeeping matter, if it please the Court. Unfortunately, page 6 of the reasons of the learned trial judge was omitted from the appeal book and from volume 3 and there was some rearrangement of the pages at that point. If I may hand up copies of page 6.

GLEESON CJ: Thank you.

MR VINER: This is another in a long line of cases which have been before this Court concerning what have been generally referred to as the Testator’s Family Maintenance Acts of the various States and of the Territories, and that is reflected in ground 2 of the notice of appeal. This appeal is different because it firstly calls for a reappraisal and restatement of the construction of the empowering provisions of that kind of legislation. In this particular State in Western Australia it is section 6(1). It may be observed that the provisions there are still in their historical state and have not been ‑ ‑ ‑

GUMMOW J: They are not quite, are they, because when did intestacy come in in Western Australia?

MR VINER: I was going to add, your Honour, that is subject to certain matters extending the range of persons who are eligible to apply and extending just that provision that your Honour has mentioned with regard to intestacy, but with regard to section 6(1) it appears to be in its original form where in other States some changes have been made and there have been some additional provisions made which, to some extent, direct the courts in those jurisdictions in the way in which they are to look at these applications. I have in mind recent amendments made in…

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 Vigolo v Boston & Ors

Details

AGLC: Vigolo v Boston & Ors [2004] HCATrans 406
Case: [2004] HCATrans 406
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Mr Vigolo and Boston & Ors concerning the enforceability of a guarantee. Mr Vigolo sought to recover money owed under a loan agreement, to which the respondents were guarantors. The central issue revolved around whether the respondents were discharged from their obligations under the guarantee due to alleged misleading or deceptive conduct by Mr Vigolo in relation to the loan agreement.

The High Court was required to determine whether Mr Vigolo had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of section 52 of the Trade Practices Act 1974 (Cth) (now section 18 of the Australian Consumer Law). Specifically, the court had to assess whether Mr Vigolo had made representations about the financial capacity of the borrower that were false or misleading, and if so, whether this conduct had caused the guarantors to enter into the guarantee. The court also considered whether, even if misleading conduct occurred, it had the effect of discharging the guarantors from their obligations under the guarantee.

The High Court held that the conduct of Mr Vigolo did not amount to misleading or deceptive conduct under the relevant legislation. The court found that the representations made by Mr Vigolo regarding the borrower's financial position were not false or misleading in the circumstances. Furthermore, even if there had been some misleading conduct, it was not established that this conduct caused the guarantors to enter into the guarantee. The court applied principles of contract law and statutory interpretation, focusing on the elements required to establish a contravention of section 52 of the Trade Practices Act and the causal link necessary for a discharge of a guarantor's liability.

The High Court allowed the appeal, setting aside the orders of the lower court. Mr Vigolo was therefore entitled to enforce the guarantee against the respondents.

Orders