Sailbay P/L & Anor v. The Tubby Trout P/L & Ors [1994] FCA 825

Sailbay P/L & Anor v. The Tubby Trout P/L & Ors [1994] FCA 825

The appeal failed as the trial judge's findings regarding inducement to enter into the sub-lease and guarantees by misleading and deceptive conduct under s 52 of the Trade Practices Act were consistent with the evidence and primary facts. Relief under s 87 and costs orders pursuant to Order 62 rule 36A were proper exercises of discretion and supported by findings of deliberate conduct.

Parties
First Appellant: Sailbay Pty Ltd; Second Appellant: Anthony John White; First Respondent: The Tubby Trout Pty Ltd; Second Respondent: David Marsden McIntyre; Second Respondent: Cathryn Mary McIntyre
Jurisdiction
Australia
Judgment Date
07 November 1994
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Misleading and Deceptive Conduct, Section 52 Trade Practices Act, Guarantee of Lease, Sub Lease Agreement, Relief Under Section 87 Trade Practices Act, Competence of Appeal, Federal Court Rules Order 62 Rule 36 a
Trade Practices Contract Costs Misleading and Deceptive Conduct Section 52 Trade Practices Act Guarantee of Lease Sub Lease Agreement Relief Under Section 87 Trade Practices Act +2 more

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Parties

Sailbay Pty Ltd

First Appellant

Anthony John White

Second Appellant

The Tubby Trout Pty Ltd

First Respondent

David Marsden McIntyre

Second Respondent

Cathryn Mary McIntyre

Second Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether conduct induced entry into sub-lease and guarantees in contravention of s 52 Trade Practices Act 1974
  2. 2 Whether loss was suffered by reason of that conduct
  3. 3 Appropriate relief under s 87 Trade Practices Act

Ratio Decidendi

The appeal failed as the trial judge's findings regarding inducement to enter into the sub-lease and guarantees by misleading and deceptive conduct under s 52 of the Trade Practices Act were consistent with the evidence and primary facts. Relief under s 87 and costs orders pursuant to Order 62 rule 36A were proper exercises of discretion and supported by findings of deliberate conduct.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal be dismissed.
  • The appellant pay the respondents costs of and incidental to the appeal to be taxed.