Ielo, Frank Robert & Ors v Marbrook Holdings & Ors [1998] FCA 168

Ielo, Frank Robert & Ors v Marbrook Holdings & Ors [1998] FCA 168

The applicants failed to establish the critical misrepresentations alleged; the only representations made (business was profitable and averaged $15,000 per week) were true and supported by records. Applicants did not rely on any misleading or deceptive conduct to enter the sale. No loss was shown to arise from respondents' conduct. The evidentiary principles did not favour the applicants, and the claims in negligence, fraud, and under Fair Trading Act similarly failed.

Parties
First Applicant: Frank Robert Ielo; Second Applicant: Anthony Frank Murdocca; Third Applicant: Antonio & Costina Ielo; First Respondent: Marbrook Holdings Pty Ltd ACN 055 286 658; Second Respondent: Joseph John Saliba; Third Respondent: Raymond Peter Saliba; Fourth Respondent: John Richard Saliba
Jurisdiction
Australia
Judgment Date
05 March 1998
Procedural Posture
Civil / Judgment at Trial
Outcome
Application dismissed with costs awarded to respondents.
Legal Topics
Misleading or Deceptive Conduct, Negligence, Fraud, Sale of Business, Reliance, Damages, Evidentiary Inference, Non Calling of Witness, Prior Inconsistent Statement
Trade Practices Consumer Protection Evidence Tort Law Misleading or Deceptive Conduct Negligence Fraud Sale of Business +5 more

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Parties

Frank Robert Ielo

First Applicant

Anthony Frank Murdocca

Second Applicant

Antonio & Costina Ielo

Third Applicant

Marbrook Holdings Pty Ltd ACN 055 286 658

First Respondent

Joseph John Saliba

Second Respondent

Raymond Peter Saliba

Third Respondent

John Richard Saliba

Fourth Respondent

Procedural Posture

Civil / Judgment at Trial

Legal Issues

  1. 1 Whether respondents engaged in misleading or deceptive conduct contrary to s 52 Trade Practices Act 1974 (Cth) and s 42 Fair Trading Act 1987 (NSW)
  2. 2 Whether respondents liable in negligence or fraud for alleged misrepresentations in sale of business
  3. 3 Whether inference should be drawn from respondents' failure to call a witness (Jones v Dunkel)

Ratio Decidendi

The applicants failed to establish the critical misrepresentations alleged; the only representations made (business was profitable and averaged $15,000 per week) were true and supported by records. Applicants did not rely on any misleading or deceptive conduct to enter the sale. No loss was shown to arise from respondents' conduct. The evidentiary principles did not favour the applicants, and the claims in negligence, fraud, and under Fair Trading Act similarly failed.

Court Disposition

Application dismissed with costs awarded to respondents.

Orders

  • The application be dismissed.
  • The applicants pay the costs of the respondents.