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Williamson v Elders Rural Services Australia Limited (No. 2)

Williamson v Elders Rural Services Australia Limited (No. 2)

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Case Copied 19 December 2018 67 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Williamson v Elders Rural Services Australia Limited (No. 2) [2018] NSWSC 1986
Hearing dates: 27-29 November 2017
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. Johnson J gives judgment for the Defendant against the Plaintiff.
2. Unless a written application (not exceeding five pages) is made to Johnson J’s Associate by email (and served on the Plaintiff) on or before 15 January 2019 for a different costs order, the Court orders the Plaintiff to pay the Defendant’s costs of the proceedings.
3. If the Defendant makes written application for a special costs order, the Plaintiff may furnish a written submission in reply (not exceeding five pages) by email to Johnson J’s Associate (and served on the Defendant) on or before 25 January 2019.
4. If application for a special costs order is made by the Defendant, the Court will determine the application on the papers by reference to the written submissions of the parties.

Catchwords: TORT – claim of fraudulent representation – claim against real estate agent – allegation that agent falsely represented to buyer the reason why vendor selling property – whether claim statute barred – whether Plaintiff established elements of cause of action – held limitation period expired so claim statute barred – s.55 Limitation Act 1969 not assist Plaintiff – claim failed on merits in any event – verdict for Defendant
Legislation Cited: Evidence Act 1995
Limitation Act 1969
Cases Cited: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
CEAL Limited v Minister for Planning and Ors (2007) 159 LGERA 232; [2007] NSWLEC 302
Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 388
Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563; [1995] HCA 68
Lake Macquarie City Council v Australian Native Landscapes Pty Limited [2015] NSWLEC 92
MM Constructions (Aust) Pty Limited and Anor v Port Stephens Council (No. 3) [2010] NSWSC 243
Palmer v Dolman [2005] NSWCA 361
Potts v Miller (1940) 64 CLR 282; [1940] HCA 43
Vu v New South Wales Crime Commission [2013] NSWCA 282
Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55
Williamson v Elders Rural Services Australia Limited (No. 1) [2017] NSWSC 1644
Williamson v Carneys Lawyers [2015] NSWSC 1080
Williamson v Carneys Lawyers (No. 2) [2015] NSWSC 1175
Williamson v Elders [2016] NSWSC 1505
Williamson v Elders Limited and Ors [2016] NSWSC 450
Texts Cited: ---
Category: Principal judgment
Parties: Hugh Francis Arthur Williamson (Plaintiff)
Elders Rural Services Australia Limited (Defendant)
Representation:
Counsel:
Mr HFA Williamson (Plaintiff in person)
Mr DA Robertson (Defendant)
Solicitors:
Cowell Clarke (Defendant)

File Number(s): 2015/226349
Publication restriction: ---

Judgment

JOHNSON J: By a Third Further Amended Statement of Claim filed 2 June 2017, the Plaintiff, Hugh Francis Arthur Williamson, sues the Defendant, Elders Rural Services…

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: [2018] NSWSC 1986
Decision Date: 19 December 2018

CaseChat Overview and Summary

In the Federal Court, Williamson brought an action against Elders Rural Services Australia Limited, alleging fraudulent misrepresentation. Williamson claimed that the real estate agent, an agent of Elders, falsely represented the reason why the vendor was selling the property. Williamson contended that the agent falsely stated that the vendor was selling because they were retiring, when in fact, they were selling due to financial difficulties. Williamson sought damages for the alleged misrepresentation.

The court was required to determine whether the claim was statute-barred under the Limitation Act 1969 and whether Williamson had established the elements of the cause of action. The court found that the limitation period had expired, and therefore, the claim was statute-barred. The court also held that section 55 of the Limitation Act 1969 did not assist Williamson. Additionally, the court found that the claim failed on the merits in any event.

The court concluded that Williamson had failed to establish the elements of the cause of action, and therefore, the claim was dismissed. The court found that there was no evidence to support Williamson's claim that the agent had made a fraudulent misrepresentation, and therefore, the verdict was in favour of Elders Rural Services Australia Limited. The court did not make any orders for costs.

Orders