Airberg Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors [1998] FCA 893

Airberg Pty Ltd & Ors v Cut Price Deli Pty Ltd & Ors [1998] FCA 893

The Court was not satisfied that the pleaded representations were made, or, where statements were made, that they were shown to be false or misleading, relied on by Airberg, or causative of the claimed loss. In particular, the alleged $30,000 weekly turnover representation was not established and, if it had been, Airberg did not rely on it and any statutory cause of action based on it was statute-barred because Airberg knew by early 1992, more than three years before commencement, that the business was incapable of producing that turnover. The claimed losses were not shown to have been caused by any 1991 representations, especially in light of intervening events. The Deed of Release,...

Jurisdiction
Australia
Judgment Date
03 August 1998
Procedural Posture
Federal Court Proceeding Alleging Misleading or Deceptive Conduct and Negligent Information and Advice Arising From Purchase of a Delicatessen Franchise / Reasons for Judgment After Hearing; Proceeding Stood Over for Making of Orders Including Costs and Possible Submissions on Rejoining CPD
Outcome
Reasons published; Airberg's substantive claims were rejected on the stated findings, and the proceeding was stood over for the making of orders including costs and to allow submissions on possible rejoining of CPD.
Legal Topics
['misleading and Deceptive Conduct' 'purchase of Franchise Business' 'deed of Release' 'privity of Contract' 'accessory Liability' 'negligent Misstatement' 'accrual of Cause of Action' 'statutory Limitation Period']
['trade Practices' 'fair Trading' 'franchising' 'contract' 'torts' 'limitation of Actions'] ['misleading and Deceptive Conduct' 'purchase of Franchise Business' 'deed of Release' 'privity of Contract' 'accessory Liability' 'negligent Misstatement' 'accrual of Cause of Action' 'statutory Limitation Period']

Case Brief

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Procedural Posture

Federal Court Proceeding Alleging Misleading or Deceptive Conduct and Negligent Information and Advice Arising From Purchase of a Delicatessen Franchise / Reasons for Judgment After Hearing; Proceeding Stood Over for Making of Orders Including Costs and Possible Submissions on Rejoining CPD

Legal Issues

  1. 1 ['Whether pre-purchase representations alleged by Airberg were made by Malovany or Sgambellone, and by whom to whom.' 'Whether any such representations were misleading or deceptive, including representations as to future matters.' 'Whether any such representations induced Airberg to enter into and complete the purchase of the Hornsby Cut Price Deli business.' 'Whether any misleading or deceptive conduct caused the loss and damage claimed by Airberg.' 'Whether Malovany or Sgambellone had accessory liability for any contravention by CPD.' 'Whether any negligent information or advice was given in breach of a duty of care and caused loss.' 'Whether the Deed of Release afforded Malovany and Sgambellone a defence to the claims.' "Whether subs 82(2) of the Trade Practices Act 1974 (Cth) and subs 68(2) of the Fair Trading Act 1987 (NSW) barred Airberg's statutory claims."]

Ratio Decidendi

The Court was not satisfied that the pleaded representations were made, or, where statements were made, that they were shown to be false or misleading, relied on by Airberg, or causative of the claimed loss. In particular, the alleged $30,000 weekly turnover representation was not established and, if it had been, Airberg did not rely on it and any statutory cause of action based on it was statute-barred because Airberg knew by early 1992, more than three years before commencement, that the business was incapable of producing that turnover. The claimed losses were not shown to have been caused by any 1991 representations, especially in light of intervening events. The Deed of Release,...

Court Disposition

Reasons published; Airberg's substantive claims were rejected on the stated findings, and the proceeding was stood over for the making of orders including costs and to allow submissions on possible rejoining of CPD.

Orders

  • ['The proceeding be stood over to 18 August 1998 at 9.30 for the making of orders including orders as to costs.']