Crystal Auburn Pty Ltd v I L Wollerman Pty Ltd [2001] FCA 735

Crystal Auburn Pty Ltd v I L Wollerman Pty Ltd [2001] FCA 735

The applicants were not entitled to a declaration of rescission, and the Court declined to exercise discretion under s 87(2)(a) to declare the contract and lease void because the applicants had affirmed the contract and restitution was not possible; these are proper discretionary considerations under s 87.

Parties
First Applicant: Crystal Auburn Pty Ltd; Second Applicant: Mark Charles Siberas; Third Applicant: Kingsley William Davies; First Respondent: I L Wollermann Pty Ltd (t/as Wollermann & Associates); Second Respondent: Valespring Investments Pty Ltd; Third Respondent: Macleay Pty Ltd; Fourth Respondent: Robin Bruce Laurie; Fifth Respondent: Barbara Joan Laurie
Jurisdiction
Australia
Judgment Date
18 June 2001
Procedural Posture
Application for Declaration of Rescission and Assessment of Damages / Post Liability Determination; Determination of Entitlement to Declaration of Rescission Under S 87 Trade Practices Act
Outcome
Declaration of rescission refused; matter remitted for assessment of damages; costs ordered against applicants on this issue.
Legal Topics
Misleading and Deceptive Conduct, Rescission, Affirmation, Restitutio in Integrum, Discretion Under S 87 Trade Practices Act
Trade Practices Contract Law Equity Misleading and Deceptive Conduct Rescission Affirmation Restitutio in Integrum Discretion Under S 87 Trade Practices Act

Case Brief

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Parties

Crystal Auburn Pty Ltd

First Applicant

Mark Charles Siberas

Second Applicant

Kingsley William Davies

Third Applicant

I L Wollermann Pty Ltd (t/as Wollermann & Associates)

First Respondent

Valespring Investments Pty Ltd

Second Respondent

Macleay Pty Ltd

Third Respondent

Robin Bruce Laurie

Fourth Respondent

Barbara Joan Laurie

Fifth Respondent

Procedural Posture

Application for Declaration of Rescission and Assessment of Damages / Post Liability Determination; Determination of Entitlement to Declaration of Rescission Under S 87 Trade Practices Act

Legal Issues

  1. 1 Whether the applicants had validly rescinded the agreement and lease on or about 17 June 1998
  2. 2 Whether the Court should make an order under s 87(2)(a) of the Trade Practices Act declaring the contract and lease void
  3. 3 The relevance of affirmation and impossibility of restitution in exercising discretion under s 87

Ratio Decidendi

The applicants were not entitled to a declaration of rescission, and the Court declined to exercise discretion under s 87(2)(a) to declare the contract and lease void because the applicants had affirmed the contract and restitution was not possible; these are proper discretionary considerations under s 87.

Court Disposition

Declaration of rescission refused; matter remitted for assessment of damages; costs ordered against applicants on this issue.

Orders

  • The declaration sought in paragraph 1 of the Application be refused.
  • The matter be remitted to a Registrar for the assessment of damages.