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
PlaintiffsAND
SHORESCAPE HOLDINGS PTY LTD (ACN 075 591 703)
First DefendantPARKRIDGE 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
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…
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- Case
- [2010] WADC 114
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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
Established by: BY J
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