Milner, B.J. & Ors v. Delita Pty Ltd & Ors [1985] FCA 478

Milner, B.J. & Ors v. Delita Pty Ltd & Ors [1985] FCA 478

The court found that Delita Pty Ltd, through its directors Glasson and Lewin, engaged in misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act by making and authorising materially false statements regarding the prospects, costs, profitability, and market viability of the guava investment schemes. Glasson and Lewin were knowingly involved in the contraventions within s.75B. The misrepresentations were relied upon by the applicants and materially induced their investments and losses. Damages are recoverable without deduction for tax advantages, but interest is not automatically recoverable for mere delay. The applicants are entitled to declarations, rescission...

Parties
Applicants: Bryan John Milner and Others; Applicants: Allan James Gill & Others; Respondent and First Cross Claimant: Delita Pty. Limited; Respondent and First Cross Claimant: Roger McMillan Glasson; Respondent and First Cross Claimant: Morris Walter Lewin; First Cross Respondent and Second Cross Claimant: Robert Charles Gooch Morrison; First Cross Respondent and Second Cross Claimant: John Christopher Bennett
Jurisdiction
Australia
Judgment Date
19 September 1985
Procedural Posture
Application for Statutory Remedies (trade Practices Act) / Final Judgment/reasons for Judgment With Orders to Be Settled
Outcome
Judgment for the applicants (orders to be settled): declarations of contravention, rescission, repayment, and damages. Costs to applicants.
Legal Topics
Misleading or Deceptive Conduct, Contraventions of Trade Practices Act, Directors' Liability, Damages for Contravention, Causation and Inducement
Trade Practices Consumer Protection Misleading or Deceptive Conduct Contraventions of Trade Practices Act Directors' Liability Damages for Contravention Causation and Inducement

Case Brief

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Parties

Bryan John Milner and Others

Applicants

Allan James Gill & Others

Applicants

Delita Pty. Limited

Respondent and First Cross Claimant

Roger McMillan Glasson

Respondent and First Cross Claimant

Morris Walter Lewin

Respondent and First Cross Claimant

Robert Charles Gooch Morrison

First Cross Respondent and Second Cross Claimant

John Christopher Bennett

First Cross Respondent and Second Cross Claimant

Procedural Posture

Application for Statutory Remedies (trade Practices Act) / Final Judgment/reasons for Judgment With Orders to Be Settled

Legal Issues

  1. 1 Whether the respondents (Delita Pty Ltd, Glasson, Lewin) engaged in misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act 1974; whether directors Glasson and Lewin were involved in the contravention (s.75B); whether the applicants were induced to invest by the misleading conduct; whether tax savings should mitigate loss; whether interest should be awarded as damages.

Ratio Decidendi

The court found that Delita Pty Ltd, through its directors Glasson and Lewin, engaged in misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act by making and authorising materially false statements regarding the prospects, costs, profitability, and market viability of the guava investment schemes. Glasson and Lewin were knowingly involved in the contraventions within s.75B. The misrepresentations were relied upon by the applicants and materially induced their investments and losses. Damages are recoverable without deduction for tax advantages, but interest is not automatically recoverable for mere delay. The applicants are entitled to declarations, rescission...

Court Disposition

Judgment for the applicants (orders to be settled): declarations of contravention, rescission, repayment, and damages. Costs to applicants.

Orders

  • Applicants to bring in short minutes of order to give effect to the reasons for judgment.
  • The agreements of 11 November 1980 to be set aside and declared void ab initio.