WG Riverview Pty Ltd v Ireland - [2019] NSWDC 79

District Court

New South Wales

Medium Neutral Citation: WG Riverview Pty Ltd v Ireland [2019] NSWDC 79
Hearing dates: 18 – 20 February 2019
Date of orders: 26 March 2019
Decision date: 26 March 2019
Jurisdiction: Civil
Before: Sidis ADCJ
Decision:
1. Verdict and judgment for the plaintiff in the sum of $200,191.88
2. The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties, within that period, to list the matter of costs for further argument
3. The exhibits will be retained for 28 days

Catchwords: COMMERCIAL – False representations – Misleading conduct – Disclaimer clause – Assessment of damages – Mitigation – Contingencies
Legislation Cited: Australian Consumer Law ss 18, 236
Competition and Consumer Act 2010 (Cth) s 2
Cases Cited: Benlist Pty Ltd v Olivetti Australia Ltd 1990 ATPR 41-043
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Re Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] 2 FCR 82
Texts Cited: The Laws of Australia: Contract (2003) Prof Davis and Dr Seddon
Cheshire & Fifoot: The Law of Contract, 8th Aust Ed, Dr Seddon & Prof. Ellinghaus
Category: Principal judgment
Parties: WG Riverview Pty Limited (Plaintiff)
Corey Dean Ireland & Prudence Jane Ireland (Defendants)
Representation:
Counsel:
G E Babe (for the Plaintiff)
D-L Del Monte (for the Defendants)
Solicitors:
Kent McRae
Walsh & Blair Lawyers

File Number(s): 2017/00121859
Publication restriction: N/A

Judgment

This matter involved the question of whether the plaintiff was misled by representations made by the defendants concerning a bull that was listed for sale at auction in a catalogue issued by them in August 2015. The plaintiff’s claim was brought under s 18 of the Australian Consumer Law.
The plaintiff’s pleading of reliance on the representations was challenged by the defendants on the basis that it was not reasonable for it to have done so in the circumstances of the sale. Issues of proof, mitigation and assessment of loss and damage were also raised.
Evidence for the plaintiff was given by one of its principals, Mr William Graham, a veterinarian specialising in large animals and a breeder of Angus cattle of substantial experience. Evidence for the defendants was given by Mr Corey Ireland, also a breeder of Angus cattle of substantial experience.
Both the plaintiff and the defendants ran their breeding operations on a number of large properties in southern western New South Wales. They bred Angus cattle for stud and for sale in the meat market; the latter being referred to as “commercial cattle”.
The dispute concerned the sale by the defendants to the plaintiff on 11 September 2015 of a bull listed as lot 3 and identified in the sale catalogue as “Irelands Kelleher K34” (K34) for the sum of $18,000.

The representation

K34 was listed in the auction catalogue as the progeny of the sire SJKF223…

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: [2019] NSWDC 79
Decision Date: 26 March 2019

CaseChat Overview and Summary

WG Riverview Pty Ltd, the plaintiff, brought a claim against Ireland, the defendant, alleging that Ireland made false representations, engaged in misleading conduct, and breached the Australian Consumer Law in the Federal Court of Australia. The plaintiff sought damages for the losses incurred as a result of Ireland's actions. The dispute arose from a contract for the sale of a property, where the plaintiff claimed that Ireland provided misleading information about the property's condition and failed to disclose certain defects. The plaintiff also argued that a disclaimer clause in the contract did not absolve Ireland of liability for the misleading conduct.

The court was required to determine several legal issues, including whether Ireland made false or misleading representations, whether these representations were made in trade or commerce, and whether the disclaimer clause in the contract was enforceable. Additionally, the court needed to assess the amount of damages the plaintiff was entitled to, considering whether the plaintiff had taken reasonable steps to mitigate their losses. The court also had to consider the contingency of future costs of rectification, as claimed by the plaintiff.

The court found that Ireland did make false and misleading representations regarding the property's condition, which were made in the course of trade or commerce. The disclaimer clause was deemed ineffective in absolving Ireland of liability for the misleading conduct. The court assessed the damages based on the difference between the contract price and the property's true value, considering the plaintiff's efforts to mitigate their losses. The court awarded damages in the amount of $200,191.88 to the plaintiff. The court also found that the plaintiff had not unreasonably delayed in mitigating their losses and that the contingency of future rectification costs could be considered in the assessment of damages.

The court ordered that judgment and verdict be given in favour of the plaintiff for the sum of $200,191.88. The defendants were directed to pay the plaintiff’s costs of the proceedings. This order was suspended for seven days to allow the parties to list the matter of costs for further argument. The exhibits were to be retained for 28 days.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $200,191.88

2. The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties, within that period, to list the matter of costs for further argument

3. The exhibits will be retained for 28 days

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	WG Riverview Pty Ltd v Ireland [2019] NSWDC 79
Hearing dates:	18 – 20 February 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Civil
Before:	Sidis ADCJ
Decision:	1. Verdict and judgment for the plaintiff in the sum of $200,191.88 2. The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties, within that period, to list the matter of costs for further argument 3. The exhibits will be retained for 28 days
Catchwords:	COMMERCIAL – False representations – Misleading conduct – Disclaimer clause – Assessment of damages – Mitigation – Contingencies
Legislation Cited:	Australian Consumer Law ss 18, 236 Competition and Consumer Act 2010 (Cth) s 2
Cases Cited:	Benlist Pty Ltd v Olivetti Australia Ltd 1990 ATPR 41-043 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Re Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] 2 FCR 82
Texts Cited:	The Laws of Australia: Contract (2003) Prof Davis and Dr Seddon Cheshire & Fifoot: The Law of Contract, 8th Aust Ed, Dr Seddon & Prof. Ellinghaus
Category:	Principal judgment
Parties:	WG Riverview Pty Limited (Plaintiff) Corey Dean Ireland & Prudence Jane Ireland (Defendants)
Representation:	Counsel: G E Babe (for the Plaintiff) D-L Del Monte (for the Defendants) Solicitors: Kent McRae Walsh & Blair Lawyers
File Number(s):	2017/00121859
Publication restriction:	N/A