Western Mail Securities Pty Ltd v Forrest Plaza Development Pty Ltd - [1987] FCA 45

Re: WESTERN MAIL SECURITIES PTY LTD
And: FORREST PLAZA DEVELOPMENTS PTY LTD and BJR NOMINEES PTY LTD
No. WA G8 of 1987
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.

CATCHWORDS

Trade Practices - misleading and deceptive conduct - application for interlocutory order - option to purchase commercial development under construction - option to expire on date of certification of practical completion - certification issued - option exercised "under protest" - settlement due 30 days after exercise of option - certification allegedly misleading and deceptive - claim for interlocutory orders including order extending date of settlement - reservations as to power - absence of causal relationship between conduct alleged and detriment suffered.

Trade Practices Act 1974 s.52

HEARING

PERTH

#DATE 23:1:1987

Counsel for the Applicant Mr M. Bennett instructed by Messrs. Keall Brinsden

Counsel for the First Respondent Mr R. Ainslie instructed by Mallesons Stephen Jaques

ORDER

The applicant's claim for interlocutory relief be

dismissed.

The costs of this application be reserved.

There be liberty to the first respondent to apply for further orders.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

JUDGE1

On 25 November 1986 the Bell Group Limited entered into a written agreement with the first respondent, under which it acquired an option to purchase the land and buildings under construction thereon known as the Forrest Centre at 219-221 St. George's Terrace, Perth. The purchase price specified in the option agreement was $88,000,000.00. The option agreement was made in settlement of litigation in the Supreme Court of Western Australia, the details of which it is not necessary to explore for present purposes.

On 22 December 1986, the Bell Group Limited assigned the benefit of its option agreement to the applicant. Under the agreement the option granted to it could be exercised at any time up to and including midnight on the date certified by the first respondent's architect as that on which the buildings comprising the Forrest Centre were practically complete and fit for occupation.
The second respondent is said to be the first respondent's architect and to carry on business under the name: Robert Cann and Associates. The agreement required the first respondent to give to the applicant at least 48 hour's notice of the date he reasonably believed would be the date of practical completion and at least 24 hour's notice of the actual date of practical completion.
On 19 December 1986, a telex was sent to the Bell Group Limited from Michael Beaver, the accountant for what is known as the Forrest Plaza Joint Venture, the developers of the Forrest Centre. It is not disputed that for present purposes, I can regard this and certain like telexes as sent on behalf of the first respondent. The telex said:-

"We hereby give notice that we believe practical completion will be on Tuesday, 22 December 1986."

This was evidently intended to be…

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

AGLC: Western Mail Securities Pty Ltd v Forrest Plaza Development Pty Ltd [1987] FCA 45
Case: [1987] FCA 45
Decision Date: 23 JANUARY 1987

CaseChat Overview and Summary

Western Mail Securities Pty Ltd sought relief against Forrest Plaza Development Pty Ltd regarding a commercial development under construction. An option to purchase was granted, set to expire upon certification of practical completion. Upon certification, the option was exercised "under protest," and a settlement was due 30 days after the exercise. The applicant alleged that the certification was misleading and deceptive and sought interlocutory orders, including an extension of the settlement date. The primary legal issues were whether the misleading and deceptive conduct claim had merit and if the applicant had established a sufficient causal relationship between the alleged conduct and the detriment suffered.

The court examined the nature of the misleading and deceptive conduct and the requisite causal link between the alleged misleading and deceptive conduct and the detriment claimed. It noted the absence of clear evidence substantiating the causal relationship, which was essential for the interlocutory relief sought. The applicant’s protestations about the certification being misleading and deceptive were considered, but the court found that the applicant had not adequately demonstrated how the alleged misleading and deceptive conduct led to the detriment. Consequently, the court dismissed the application for interlocutory relief, finding that the applicant had not met the necessary threshold for such orders.

The court's decision was grounded in the absence of a clear causal link between the alleged misleading and deceptive conduct and the detriment suffered. The court reserved costs and allowed the first respondent the liberty to apply for further orders. This outcome underscores the necessity for a strong causal connection in claims of misleading and deceptive conduct, particularly in interlocutory applications.

Orders

Orders of the court

The applicant's claim for interlocutory relief be

dismissed.

The costs of this application be reserved.

There be liberty to the first respondent to apply for further orders.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. (See also Order 37 rule 2(3)).

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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