Bowler, Bruce William & Ors v Hilda Pty Ltd [1998] FCA 210

Bowler, Bruce William & Ors v Hilda Pty Ltd [1998] FCA 210

By majority, the evidence did not justify the trial judge's conclusion that the Leader companies had reasonable grounds for making the unqualified unit use representation. The Leader companies should be inferred to have known that the property could not lawfully be used other than as a residential hotel and ancillary car parking unless an appropriate variation were obtained, and the evidence concerning Hilda's dealings with the planning authority and the facsimiles to Hilda's solicitors did not establish reasonable grounds for representing that Unit 23 could be lived in or privately rented. The appeal was therefore allowed and the matter remitted for further argument on falsity and any...

Jurisdiction
Australia
Judgment Date
25 February 1998
Procedural Posture
Appeal in a Trade Practices Act Proceeding Concerning Sale of a Unit in a Real Estate Development / Appeal From Orders Dismissing the Appellants' Proceeding After Trial
Outcome
Appeal allowed; orders of the trial judge set aside; matter remitted to the trial judge; respondents ordered to pay the appellants' costs of the appeal.
Legal Topics
['representations as to Future Matters' 'sale or Grant of Interests in Land' 'lawful Use of Land' 'reasonable Grounds Under S 51 a of the Trade Practices Act 1974 (cth)' "agent's Representations for Vendor"]
['trade Practices' 'consumer Protection' 'real Property' 'misleading or Deceptive Conduct'] ['representations as to Future Matters' 'sale or Grant of Interests in Land' 'lawful Use of Land' 'reasonable Grounds Under S 51 a of the Trade Practices Act 1974 (cth)' "agent's Representations for Vendor"]

Case Brief

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Procedural Posture

Appeal in a Trade Practices Act Proceeding Concerning Sale of a Unit in a Real Estate Development / Appeal From Orders Dismissing the Appellants' Proceeding After Trial

Legal Issues

  1. 1 ['Whether the unit use representation that units may be lived in, rented out privately, or rented to the management company was misleading or deceptive or false or misleading under the Trade Practices Act 1974 (Cth).' 'Whether the unit use representation was a representation with respect to a future matter within s 51A of the Trade Practices Act 1974 (Cth).' 'Whether Leader Real Estate Pty Ltd and Leader Holdings Pty Ltd had reasonable grounds for making the unit use representation.' 'Whether the appellants should be permitted to rely on s 53A(1)(b) of the Trade Practices Act 1974 (Cth) on appeal.' 'Whether the matter should be remitted for determination of falsity and outstanding issues.']

Ratio Decidendi

By majority, the evidence did not justify the trial judge's conclusion that the Leader companies had reasonable grounds for making the unqualified unit use representation. The Leader companies should be inferred to have known that the property could not lawfully be used other than as a residential hotel and ancillary car parking unless an appropriate variation were obtained, and the evidence concerning Hilda's dealings with the planning authority and the facsimiles to Hilda's solicitors did not establish reasonable grounds for representing that Unit 23 could be lived in or privately rented. The appeal was therefore allowed and the matter remitted for further argument on falsity and any...

Court Disposition

Appeal allowed; orders of the trial judge set aside; matter remitted to the trial judge; respondents ordered to pay the appellants' costs of the appeal.

Orders

  • ['Appeal allowed.' 'Orders of the trial judge set aside.' 'Matter remitted to trial judge for further argument on the issue of falsity and any other outstanding issues.' "Respondents pay the appellants' costs of the appeal." "The appellants' costs of the trial and any further hearing to be reserved for the trial...