Warner v Elders Rural Finance Ltd

Case [1993] FCA 170


Re: ADRIAN ALLAN WARNER and JULIE FRANCES WARNER
And: ELDERS RURAL FINANCE LIMITED; KEITH RICHARDSON and QUEENSLAND INDUSTRY
DEVELOPMENT CORPORATION
No. Q G147 of 1992
FED No. 170
Number of pages - 14
Trade Practices
(1993) 113 ALR 517, (1993) ATPR 41-238
(1993) 41 FCR 399

COURT

IN THE FEDERAL COURT OF AUSTRALIA


QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Foster(1), Hill(2) and Drummond(1) JJ.
CATCHWORDS

Trade Practices - misleading and deceptive conduct - silence - may be misleading or deceptive conduct if there is a "reasonable expectation" in the particular circumstances that information will be disclosed.

Trade Practices Act 1974 (Cth) - s. 52

Arnold v. State Bank of South Australia (Full Federal Court, unreported, 18 November, 1992)

David Securities Pty. Ltd. v. Commonwealth Bank of Australia (1990) 23 FCR 1

Demagogue Pty. Ltd. v. Nicholas Ramensky (1992) 110 ALR 608

General Newspapers Pty. Ltd. v. Australian and Overseas Telecommunications Corporation Limited (Federal Court, Wilcox J., unreported, 15 January, 1993)

Henjo Investments Pty. Ltd. v. Collins Marrickville Pty. Ltd. (1988) 79 ALR 83

Kabwand v. National Australia Bank Ltd. (1989) 11 ATPR 40-950

Kimberley NZI Finance Ltd. v. Torero Pty. Ltd. (1989) ATPR (Digest) 46-054

Rhone-Poulenc Agrochimic SA v. UIM Chemical Services Pty. Ltd. (1986 ) 12 FCR 477

Quade v. Commonwealth Bank of Australia (1991) 99 ALR 567

Winterton Constructions Pty. Limited v. Hambros Australia Ltd. (1993) 15 ATPR 41-205

HEARING

BRISBANE, 18 November 1992

#DATE 26:3:1993

Counsel for the appellants: Mr. T. Schulze

Solicitor for the appellants: Jennifer E. Darin

Counsel for the first and Mr. P.D.T. Applegarth

second respondents:

Solicitors for the first and Corrs Chambers

second respondents: Westgarth

Counsel for the third respondent: Mr. A.J.H. Morris and

Mr. L.J.A.T. Hampson

Solicitors for the third respondent: Feez Ruthning

ORDER

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The cross appeal of the first, second and third respondents is allowed.

3. The order of the Honourable Mr Justice Beaumont of 7 October, 1992, whereby the appellants were granted leave to replead against the first, second and third respondents, be set aside.

4. The action against the first, second and third respondents is dismissed.

5. The appellants pay the costs of the first, second and third respondents of and incidental to:

(a) the appeal;

(b) the cross appeal; and

(c) the action;

including reserved costs, to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

FOSTER AND DRUMMOND JJ. The appellants, husband and wife, operate a grazing property. The first and third respondents hold securities over the appellants' property which were granted to them in respect of financial accommodation made available to the appellants. The second respondent is an officer of the first respondent.

  1. On 23 September, 1992, on the ground that the appellants had failed to make out a serious question to be tried, Cooper J. dismissed the appellants' application for interlocutory orders which, if granted, would have prevented the first respondent…

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Details
AGLC
Warner, A.A. & Anor. v. Elders Rural Finance Ltd & Ors. [1993] FCA 170 ((1993) 113 ALR 517; (1993) ATPR 41-238; (1993) 41 FCR 399)
Case
[1993] FCA 170
Decision Date

CaseChat Overview and Summary

The appeal was brought by the plaintiffs against the defendants in the Federal Court of Australia. The plaintiffs, Warner, sought to amend their pleadings to include allegations of misleading and deceptive conduct against the defendants, Elders Rural Finance Ltd, and related parties. The defendants opposed the amendment, arguing it was an attempt to circumvent the court’s earlier order dismissing the original claims. The plaintiffs' appeal against the refusal to allow the amendment and the defendants' cross-appeal against the order granting leave to replead were both before the court.

The court was tasked with determining whether the plaintiffs were entitled to amend their pleadings to include allegations of misleading and deceptive conduct based on the principle that silence can constitute misleading or deceptive conduct if there is a reasonable expectation that information will be disclosed. The court also had to consider whether the plaintiffs' proposed amendments were permissible under the rules of court and whether the earlier order dismissing the action was correct.

The court held that the plaintiffs were not entitled to amend their pleadings to include new claims of misleading and deceptive conduct. The court found that the plaintiffs' proposed amendments were an attempt to re-litigate the same issues and were not permissible under the rules of court. The court further held that the earlier order dismissing the action was correct, as the plaintiffs had not established a reasonable expectation that the defendants would disclose information. Consequently, the appeal was dismissed, and the cross-appeal was allowed, leading to the setting aside of the order granting leave to replead and the dismissal of the action against the defendants.

The court ordered that the appeal be dismissed, the cross-appeal be allowed, and the order granting leave to replead be set aside. The action against the defendants was dismissed, and the plaintiffs were ordered to pay the defendants' costs of the appeal, cross-appeal, and the underlying action, including reserved costs to be taxed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The cross appeal of the first, second and third respondents is allowed.

3. The order of the Honourable Mr Justice Beaumont of 7 October, 1992, whereby the appellants were granted leave to replead against the first, second and third respondents, be set aside.

4. The action against the first, second and third respondents is dismissed.

5. The appellants pay the costs of the first, second and third respondents of and incidental to:

(a) the appeal;

(b) the cross appeal; and

(c) the action;

including reserved costs, to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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

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