Legal Research
Cases
Wieland v Texxcon Pty Ltd

Wieland v Texxcon Pty Ltd

Link copied

Case Copied 5 September 2014 72 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0093
DAVID CHARLES WIELAND and ANOR	Appellants
V
TEXXCON PTY LTD (ACN 120 272 880)	Respondent
S APCI 2013 0106
GEOFFREY GORDON PORZ and ANOR	Appellants
V
TEXXCON PTY LTD (ACN 120 272 880)	Respondent
S APCI 2013 0110
NOMINEXX PTY LTD (ACN 121 396 503) and ANOR	Appellants
V
DAVID CHARLES WIELAND and ORS	Respondents

---

JUDGES:	NETTLE, HANSEN AND BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11, 12 August 2014
DATE OF JUDGMENT:	5 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 199
JUDGMENT APPEALED FROM:	Texxcon Pty Ltd & Anor v Austexx Corporation Pty Ltd & Ors [2013] VSC 327 (Davies J) Texxcon Pty Ltd & Anor v Austexx Corporation Pty Ltd & Ors (No 2) [2013] VSC 343 (Davies J)

---

TRADE PRACTICES – Misleading or deceptive conduct – Representations – Whether representation that funds in capitalised interest facility could be drawn down to fund repayment of the loan made – Alleged oral representations – Construction of funding document – Reliance – Causation – Trade Practices Act 1974 (Cth), s 52 – Fair Trading Act 1999 (Vic), s 9.

TRADE PRACTICES – Misleading or deceptive conduct – Accessorial liability – Trade Practices Act 1974 (Cth), s 75B – Fair Trading Act 1999 (Vic), s 159.

CORPORATIONS – Directors’ duties – Whether directors breached duties – No breach of duty.

AGENCY – Joint venture – Whether nominee company merely agent for joint venture parties.

DAMAGES – Pleadings – Case not run at trial – Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360.

APPORTIONMENT – Apportionable claim – Concurrent wrongdoers – Trade Practices Act 1974 (Cth), ss 87CB and 87CC.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants, Cross Respondents and Respondents, Mr Wieland and Mr Goldberger	Mr A C Archibald QC with Mr M H O’Bryan QC and Mr M P Costello	Arnold Bloch Leibler
For the Appellants, Cross Respondents and Respondents, Mr Porz and Mr Cowan	Mr R M Garratt QC with Mr C E Shaw	Logie-Smith Lanyon
For the Appellants, Nominexx Pty Ltd and Texxcon Pty Ltd, the Cross Appellant and Respondent, Texxcon Pty Ltd, and the Respondents, Mr Gray, Mr Henderson and Mr Gianfriddo	Mr J W K Burnside QC with Mr N D Hopkins QC	Corrs Chambers Westgarth

NETTLE JA
HANSEN JA
BEACH JA:

Introduction

In October 2008, Nominexx Pty Ltd (‘Nominexx’) made a loan of $14 million of what were described at trial as ‘joint venture funds’ to Austexx Corporation Pty Ltd (‘Austexx’). That loan was never repaid. In the proceeding below, Nominexx and one of the two joint venture companies, Texxcon Pty Ltd (‘Texxcon’) claimed damages from David Charles Wieland (‘Mr Wieland’), David Goldberger (‘Mr Goldberger’), Geoffrey Gordon Porz (‘Mr Porz’) and Christopher Cowan (‘Mr Cowan’). Texxcon and Nominexx alleged that:
(a)Messrs Porz and Cowan had engaged in misleading or deceptive conduct which induced Texxcon to agree to, and Nominexx to make, the loan of joint venture funds;
(b)Messrs…

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.

Keep reading for free

Create a free CaseChat account to read Wieland v Texxcon Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] VSCA 199
Decision Date: 5 September 2014

CaseChat Overview and Summary

The matter before the court involved Wieland, the plaintiff, against Texxcon Pty Ltd, the defendant. The dispute centred around whether Texxcon had engaged in misleading or deceptive conduct by suggesting that funds available under a capitalised interest facility could be used to repay the loan, when the funding document did not permit such drawdowns. The plaintiff further alleged that the defendant's conduct breached provisions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic). Additionally, the plaintiff sought to hold Texxcon's directors liable for any breaches of their duties under the Corporations Act 2001 (Cth), and argued that a nominee company was merely an agent of the joint venture parties.

The court had to determine if Texxcon's alleged oral representations constituted misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic). The court also needed to assess whether Texxcon's directors breached their duties under the Corporations Act 2001 (Cth). Furthermore, the court considered whether the nominee company acted as an agent for the joint venture parties and examined the plaintiff's claim for damages, which was not fully run at trial.

The court found that Texxcon did not engage in misleading or deceptive conduct, as the alleged oral representations did not influence the plaintiff's decision-making. The court held that the funding document's terms were clear and the plaintiff had not relied on the alleged representations to their detriment. Additionally, the directors were not found to have breached their duties. The court also concluded that the nominee company was not merely an agent of the joint venture parties. The plaintiff's claim for damages was dismissed as it had not been fully argued at trial.

The court ordered that the plaintiff take nothing by the action, and that costs be paid by the plaintiff.

Orders