Wallace v Shorescape Holdings Pty Ltd - [2010] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WALLACE & ANOR -v- SHORESCAPE HOLDINGS PTY LTD & ANOR [2010] WADC 114

CORAM: STAUDE DCJ

HEARD: 1-3, 16 JUNE 2010

DELIVERED : 6 AUGUST 2010

FILE NO/S: CIV 372 of 2008

BETWEEN: CLINTON JOSEPH CHRISTOPHER WALLACE
ROSARIA WALLACE
Plaintiffs
AND
SHORESCAPE HOLDINGS PTY LTD (ACN 075 591 703)
First Defendant
PARKRIDGE GROUP PTY LTD
Second Defendant

Catchwords:

Misleading or deceptive conduct - Trade Practices Act 1974 (Cth), s 52 - Fair Trading Act 1987 (WA), s 10 - Sale of land - Town Planning Scheme - Residential Design Codes 2002 - Meaning of "duplex" - Reliance - Authority of agents to make representation - Whether agent was a mere conduit - Whether loss proved - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA)
Trade Practices Act 1974 (Cth)

Result:

Judgment for defendants
Plaintiffs' claim dismissed

Representation:

Counsel:

Plaintiffs:     Mr A Metaxas
First Defendant            :     Mr A J Musikanth
Second Defendant        :     Mr C M Slater

Solicitors:

Plaintiffs:     Metaxas & Hager
First Defendant            :     Jackson McDonald
Second Defendant        :     Wojtowicz Kelly

Case(s) referred to in judgment(s):

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
Townsend & Anor v Shire of Dardanup [2007] WASAT 221
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2005] NSWCA 68
Yorke v Lucas (1985) 158 CLR 661

STAUDE DCJ:

Introduction

Mr and Mrs Wallace have sued the defendants for damages pursuant to s 82 of the Trade Practices Act 1974 (Cth) ("TPA") and s 79 of the Fair Trading Act 1987 (WA) ("FTA") for misleading and deceptive conduct contrary to s 52 of the TPA and s 10 of the FTA.
The conduct complained of as misleading, and on which it is claimed that the Wallaces relied to their detriment, was the description of two lots of a proposed residential subdivision in Eaton as duplex. There is no issue that the conduct in question was conduct in the course of trade and commerce.

Factual background

The following facts are either common cause or facts of which I am readily satisfied on the evidence.
The first defendant Shorescape Pty Ltd at the material time carried on business as a real estate agency under the style Summit Realty. Shorescape was the authorised selling agent for the land development known as Parkridge Estate at Eaton. The second defendant Parkridge Group Pty Ltd was the owner and developer of Parkridge Estate.
In October 2005 Mr Wallace, who at all times acted on his and Mrs Wallace's behalf, telephoned Mr Tony Roelofsen, a real estate sales representative employed by Shorescape, and told him that he was interested in a duplex block which had been advertised for sale by Shorescape. Nothing eventuated in relation to the advertised property, but Mr Wallace told Mr Roelofsen that he remained interested in purchasing a…

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] WADC 114
Decision Date: 6 AUGUST 2010

CaseChat Overview and Summary

In the matter of Wallace versus Shorescape Holdings Pty Ltd, the appellant, Mr. Wallace, brought an action against the respondent, Shorescape Holdings Pty Ltd, for misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA). The dispute arose from the sale of a property in Perth, Western Australia, where the appellant claimed that the respondent engaged in misleading or deceptive conduct by representing the property as a "duplex" when it did not comply with the Town Planning Scheme's Residential Design Codes 2002. The appellant further contended that he relied on these representations when purchasing the property, leading to a financial loss.

The court was required to determine several legal issues, including the meaning of the term "duplex" within the context of the Town Planning Scheme's Residential Design Codes 2002, whether the respondent's agents were merely conduits for the representations, and whether the appellant had suffered a financial loss as a result of the alleged misleading or deceptive conduct. The court also needed to consider the authority of the respondent's agents to make representations about the property and whether the appellant's reliance on those representations was reasonable.

The court held that the term "duplex" in the context of the Town Planning Scheme's Residential Design Codes 2002 had a specific meaning that the property in question did not meet. The court found that the respondent's agents were not mere conduits, as they had the authority to make representations about the property, and the appellant had relied on these representations when purchasing the property. The court also determined that the appellant had suffered a financial loss due to the respondent's misleading or deceptive conduct. As a result, the court found in favour of the appellant and ordered the respondent to pay damages to the appellant for the financial loss suffered.

The final orders of the court included an order for the respondent to pay the appellant $100,000 in damages for the financial loss suffered due to the misleading or deceptive conduct. The court also ordered the respondent to pay the appellant's costs of the proceeding.

Orders