Plummer, W.D. v The Saints Gallery Pty Ltd [1987] FCA 711

Plummer, W.D. v The Saints Gallery Pty Ltd [1987] FCA 711

The respondent represented that the paintings and drawings were genuine works of Ian Fairweather and Lloyd Rees. The Fairweather works were conceded to be forgeries and, on the balance of probabilities, the Lloyd Rees drawings were also forgeries. The respondent did not effectively disclaim responsibility for the representations: the references to valuation were in substance invitations to make offers, not requests that the applicant authenticate the works for himself. The applicant relied on the representations, including provenance information supplied through the respondent, in deciding to purchase. The respondent therefore engaged in misleading conduct attracting relief under ss.52...

Jurisdiction
Australia
Judgment Date
18 December 1987
Procedural Posture
Trade Practices Proceeding Alleging Misleading or Deceptive Conduct in the Sale of Paintings and Drawings / Final Judgment After Hearing
Outcome
The applicant obtained declarations that both contracts were void and repayment orders subject to re-delivery of the works; the cross-claim against the applicant was dismissed; the cross-claim against Stephen B Kehoe was stood over generally; the respondent was ordered to pay the applicant's costs.
Legal Topics
['misleading or Deceptive Conduct' 'sale of Artworks' 'representations as to Authorship and Authenticity' 'disclaimer of Responsibility' 'reliance' 'forgery' 'rescission and Refund Under Statutory Relief' 'hearsay Evidence Admitted Without Objection']
['trade Practices' 'consumer Law' 'contract' 'evidence'] ['misleading or Deceptive Conduct' 'sale of Artworks' 'representations as to Authorship and Authenticity' 'disclaimer of Responsibility' 'reliance' 'forgery' 'rescission and Refund Under Statutory Relief' 'hearsay Evidence Admitted Without Objection']

Case Brief

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Procedural Posture

Trade Practices Proceeding Alleging Misleading or Deceptive Conduct in the Sale of Paintings and Drawings / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether The Saints Gallery Pty Limited represented that two paintings were by Ian Fairweather and two watercolour and pastel drawings were by Lloyd Rees.' 'Whether any representations as to authorship were misleading or deceptive or likely to mislead or deceive under s.52 of the Trade Practices Act 1974.' 'Whether the respondent effectively disclaimed responsibility for the representations by asking the applicant to value or authenticate the works.' "Whether the applicant relied on the respondent's representations in deciding to purchase the works." 'Whether the two drawings attributed to Lloyd Rees were genuine.' 'What relief should be granted under s.87 of the Trade Practices Act 1974.']

Ratio Decidendi

The respondent represented that the paintings and drawings were genuine works of Ian Fairweather and Lloyd Rees. The Fairweather works were conceded to be forgeries and, on the balance of probabilities, the Lloyd Rees drawings were also forgeries. The respondent did not effectively disclaim responsibility for the representations: the references to valuation were in substance invitations to make offers, not requests that the applicant authenticate the works for himself. The applicant relied on the representations, including provenance information supplied through the respondent, in deciding to purchase. The respondent therefore engaged in misleading conduct attracting relief under ss.52...

Court Disposition

The applicant obtained declarations that both contracts were void and repayment orders subject to re-delivery of the works; the cross-claim against the applicant was dismissed; the cross-claim against Stephen B Kehoe was stood over generally; the respondent was ordered to pay the applicant's costs.

Orders

  • ['The contract made between the applicant and the respondent on 1 August 1986 for the sale to the applicant of two paintings said to be the work of Ian Fairweather be declared void.' 'Subject to the applicant re-delivering the two paintings to the respondent on an agreed day or, failing agreement, on the 28th day...