BETWEEN: WESFARMERS DALGETY LTD
(ACN 008 743 217)
DALGETY LTD (ACN 008 996 218)
PRIMARY INDUSTRY BANK OF AUSTRALIA LTD (ACN 001 621 129)
Plaintiffs
AND
RUTH EILEEN WILLIAMS
First Defendant
GALE CURTIS WILLIAMS
Second Defendant
(BY ORIGINAL ACTION)
RUTH EILEEN WILLIAMS
First Plaintiff by First Counterclaim
GALE CURTIS WILLIAMS
Second Plaintiff by First Counterclaim
MARK CURTIS WILLIAMS
Third Plaintiff by First Counterclaim
GEOFFREY ORMOND GRAINGER
JOAN HARRINGTON GRAINGER
Plaintiffs by Second Counterclaim
AND
WESFARMERS DALGETY LTD (ACN 008 743 217)
DALGETY LTD (ACN 008 996 218)
PRIMARY INDUSTRY BANK OF AUSTRALIA LTD (ACN 001 621 129)
First Defendants by First Counterclaim
JIM DYER
Second Defendant by First Counterclaim
GEOFFREY ORMOND GRAINGER
Third Defendant by First Counterclaim
JOAN HARRINGTON GRAINGER
Fourth Defendant by First Counterclaim
WESFARMERS DALGETY REAL ESTATE (WA) PTY LTD (ACN 009 238 993)
Fifth Defendant by First Counterclaim
RUTH EILEEN WILLIAMS
GALE CURTIS WILLIAMS
MARK CURTIS WILLIAMS
First Defendants by Second Counterclaim
WESFARMERS DALGETY REAL ESTATE (WA) PTY LTD (ACN 009 238 993)
Second Defendant by Second Counterclaim
(BY COUNTERCLAIM)

Catchwords:

Misleading and deceptive conduct - Contract for sale and lease of farming land - Real estate agent also the vendor and lessor - Claim for damages and indemnity for liability for amounts owed under leases and related financing arrangements - Whether representation in advertisement that farming land is "not fully cleared" and represents an "expansion opportunity" carried the implication that there was no restrictions on clearing unfelled portions of that land - Whether representation that vendor had letter or permit granting permission to clear land carried the implication that permission to clear was transferable to a purchaser or lessee of that land - Whether representation that gaining permission to clear land would be "straightforward" was misleading or deceptive - Whether disclaimer in contract of sale of land negatived a pleaded reliance on representations as to clearing that land - Whether representation as to area of arable land estimated in combine acres and including land subject to a memorial of conservation covenant was misleading or deceptive - Whether loss caused by supervening events - Whether lessee failed to mitigate loss by staying in possession of land following legal advice - Turns on own facts

Environmental law - Land clearing - Notification of intention to clear land under Soil and Land Conservation Regulations 1992 (WA) - Definition of "change in use" of land - Blade ploughing held to be notifiable - Likelihood of Commissioner objecting where adjoining and nearby lands are subject to soil conservation notices - Turns on own facts

Real estate agents - Misleading and deceptive conduct - Agent also the proprietor of the land - Whether employee entitled to indemnity from employer…

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 Wesfarmers Dalgety Ltd v Williams

Details

AGLC: Wesfarmers Dalgety Ltd v Williams [2005] WASC 287
Case: [2005] WASC 287
Decision Date: 23 DECEMBER 2005

CaseChat Overview and Summary

Wesfarmers Dalgety Ltd, acting as the mortgagee, brought a claim against Williams, a farmer, for damages and indemnity for liabilities arising under leases and related financing arrangements. The dispute centred on representations made by the real estate agent, who was also the vendor and lessor, in advertisements for the sale and lease of farming land. The agent had advertised that the land was "not fully cleared" and presented an "expansion opportunity" and that permission to clear land would be "straightforward." Williams alleged that these representations were misleading and deceptive, as there were restrictions on clearing unfelled portions of the land. The case involved determining whether these representations implied no restrictions on clearing or that permission to clear was transferable to a purchaser or lessee. Additionally, the case considered whether a disclaimer in the contract of sale negated any reliance on the representations regarding land clearing. Another issue was whether the representation about the area of arable land, estimated in combine acres and including land subject to a conservation covenant, was misleading or deceptive. The case also involved questions of loss causation, mitigation, and indemnity between the parties and their employees.

The court found that the representations in the advertisements were misleading and deceptive, as they implied that there were no restrictions on clearing unfelled portions of the land and that permission to clear was transferable to a purchaser or lessee. The disclaimer in the contract of sale did not negate the reliance on the representations regarding land clearing. The court also found that the representation about the area of arable land was misleading or deceptive, as it included land subject to a conservation covenant. The court held that the loss was not caused by supervening events, and that Williams failed to mitigate loss by staying in possession of the land following legal advice. The case was determined to turn on its own facts, particularly regarding environmental law and land clearing. The court found that blade ploughing was notifiable under the Soil and Land Conservation Regulations 1992 (WA), and that it was likely the Commissioner would object to clearing where adjoining and nearby lands were subject to soil conservation notices. The court also found that the employee who engaged in misleading and deceptive conduct had not performed their duties with reasonable care, and therefore, was not entitled to indemnity from their employer. The employer, in turn, was not entitled to indemnity from the employee.

The court ordered that Williams pay Wesfarmers Dalgety Ltd damages and indemnity for liabilities arising under leases and related financing arrangements. The court also ordered that Williams pay costs of the proceedings. The court found that the employee who engaged in misleading and deceptive conduct was liable for their own costs. The court held that the employer was not entitled to indemnity from the employee, and that the employee was not entitled to indemnity from the employer. The court further found that the mortgagee was entitled to remedies under the mortgage. The court's decision was based on the specific facts of the case and involved a detailed analysis of environmental law, land clearing, and the duties of real estate agents. The case serves as an important reminder of the need for real estate agents to exercise care when making representations about land and to ensure that any disclaimers are clear and effective.

Orders