Court of Appeal

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Hadgelias Holdings and Waight v Seirlis & Ors [2014] QCA 177; [2015]1 Qd R 337 (13/9351) Holmes, Gotterson and Morrison JJA 29/07/2014

Full-text: QCA14-177.pdf

Catchwords

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – REAL ESTATE TRANSACTIONS – where the appellants were engaged as agents on the second respondent vendors’ sale of an apartment to the first respondent – where the first respondent was induced to enter into the contract by false representations made by the appellants on behalf of the vendors that there were three car parks allocated to the apartment – where, in fact, the apartment had only two car parks and one storage space which could not be converted into a car park – where two representations made collectively by the appellants were misleading and deceptive conduct contravening s 52 of the Trade Practices Act 1974 (Cth) – where one further representation made by the appellant Waight contravened s 38 of the Fair Trading Act 1989 – where the appellants contended that the trial judge had erred in finding that the appellant Waight had made any different and distinct representation so as to attract the application of the Fair Trading Act to his conduct – whether the appellant Waight was separately responsible for misleading conduct so that his liability could not be limited

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – REAL ESTATE TRANSACTIONS – where the appellants were engaged as agents on the second respondent vendors’ sale of an apartment to the first respondent – where the first respondent was induced to enter into the contract by false representations made by the appellants on behalf of the vendors that there were three car parks allocated to the apartment – where, in fact, the apartment had only two car parks and one storage space which could not be converted into a car park – where the vendors directed the appellants to make the representation as to the availability of the third car park – whether the appellants and vendors performed a single set of acts which caused loss – whether the appellants and vendors were “concurrent wrongdoers” within the meaning of s 87CB of the Trade Practices Act so as to attract the application of s 87CD of the Trade Practices Act, allowing apportionment of liability between them

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – BASIS UPON WHICH DAMAGES ASSESSED – where the first respondent was induced to enter into a contract of sale for an apartment by false representations made by the appellants on behalf of the second respondent vendors – where the trial judge assessed damages as the difference between the price paid for the apartment and the actual value of the apartment on the date the contract settled – where the appellants and second respondents appealed the damages award submitting that the trial judge had erred by under-valuing both the existing storage space and the unit as at the ultimate settlement date – where the first respondent cross-appealed alleging that the apartment had been over-valued – whether the value of the apartment was correctly assessed

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – WHAT LOSS OR DAMAGE RECOVERABLE – INTEREST – where the first respondent was induced to enter into a contract of sale for an apartment by false representations made by the appellants on behalf of the second respondent vendors – where the first respondent settled some months after the date stipulated in the contract in order to avoid a specific performance action – where the first respondent borrowed funds interest-free from a family trust prior to the original settlement date in order to settle the contract – where the family trust sold shares in order to provide the funds – where had the first respondent not had to raise funds for settlement at the original date the trust could have made a larger amount available because the shares had risen in value by the time settlement took place – where instead the first respondent incurred interest costs in borrowing that amount – where the appellant contended the trial judge erred in regarding an award of interest under s 58 of the Civil Proceedings Act as compensation for the interest she had to pay on the additional borrowings entailed in paying a higher price than the unit was worth – whether the interest paid on the sum which might have been borrowed from the family trust was sufficiently connected to the contravention of s 52 to be recoverable – whether the award of interest under s 58 in fact amounted to adequate compensation

Summary Notes

General Civil Appeal – where the appellants, Hadgelias Holdings Pty Ltd and Mr Phillip Waight, the latter an independent contractor engaged by Hadgelias Holdings to sell real estate, acted as agents on the second respondents’ sale of an apartment to the first respondent, Mrs Seirlis – where the first respondent was induced to enter into the contract by false representations made by the appellants on behalf of the vendors that there were three car parks allocated to the apartment – where at an inspection of the property, Mr Waight had told Mrs Seirlis that there were two parking spaces with a third area containing a plinth or platform on which a storage shed could be constructed; many apartment owners had removed the plinth and used the space for parking – where at a later meeting, Mr Waight had assured her that he would personally see to the removal of the plinth, paying for it himself, upon which she committed to the contract by initialling changes made by the vendors on a contract document – where, in fact, the apartment had only two car parks and one storage space which could not be converted into a car park – where Mr Waight’s undertaking to have the slab removed was given entirely of his own volition; it was not a promise which either the vendors or Hadgelias had authorised him to make where it was conduct with the same misleading effect as the representations for which they were responsible, and it contributed with those representations in inducing Mrs Seirlis to purchase the apartment; but it was conduct performed by Mr Waight, and Mr Waight only – where two representations made collectively by the appellants were misleading and deceptive conduct contravening s 52 of the Trade Practices Act 1974 (Cth) – where one further representation made by the appellant Waight contravened s 38 of the Fair Trading Act 1989 – where the appellants contended that the trial judge had erred in finding that the appellant Waight had made any different and distinct representation so as to attract the application of the Fair Trading Act to his conduct – whether the appellant Waight was separately responsible for misleading conduct so that his liability could not be limited – where the vendors directed the appellants to make the representation as to the availability of the third car park – whether the appellants and vendors performed a single set of acts which caused loss – whether the appellants and vendors were “concurrent wrongdoers” within the meaning of s 87CB of the Trade Practices Act so as to attract the application of s 87CD of the Trade Practices Act, allowing apportionment of liability between them – where Mrs Seirlis’ claim for damages was an apportionable claim, notwithstanding that it might equally have succeeded through the establishment of a contravention of s 53A – where the trial judge rejected the view of a valuer, a Mr Kendall, that the legal impediment to the use of the storage space for parking would be immaterial to a prospective purchaser and consequently would have no effect on the value of the apartment – where another valuer, Mr Hooper, gave his opinion on the valuation of another apartment but it was not known whether the buyer knew that use of the third space as a car space was illegal – where the point is that the valuation figures were not absolutes and the trial judge was entitled to decide which of them he would rely on, and to reach the conclusions which he did. Appeals dismissed. Procedural orders for cost submisssions.