Cusmano, Francesco v Pinner, Neville & Ors [1998] FCA 927

Cusmano, Francesco v Pinner, Neville & Ors [1998] FCA 927

The applicant failed against Mr Pinner and MLC because the central express representation that Mr Pinner was fixing everything up was not proved, the post-fire representation could not have induced pre-fire reliance, the pleaded enquiries and silence were not established or relied upon, and any belief held by the applicant resulted from other matters including what he was told by his cousin rather than misleading or deceptive conduct by Mr Pinner. The claim against Ascot failed because there was insufficient evidence that the applicant dealt with or retained Ascot Realty Pty Ltd. The claim against Mr Francesco Scali failed because, although he owed a duty to take reasonable care in...

Jurisdiction
Australia
Judgment Date
05 August 1998
Procedural Posture
Application for Damages for Misleading or Deceptive Conduct, Breach of Contract and Negligence Arising From Failure to Arrange Insurance for Purchased Commercial Property / Final Judgment After Hearing; Applicant's Motion Filed 12 May 1998 Dismissed
Outcome
Application dismissed; applicant's motion filed on 12 May 1998 dismissed with costs; applicant to pay respondents' costs.
Legal Topics
['misleading or Deceptive Conduct' 'insurance Policy Transfer or Assignment' 'settlement Agent Duty of Care' 'solicitor Retainer Compared With Settlement Agent Retainer' 'causation and Reliance']
['trade Practices' 'negligence' 'contract' 'insurance' 'conveyancing and Settlement Agents'] ['misleading or Deceptive Conduct' 'insurance Policy Transfer or Assignment' 'settlement Agent Duty of Care' 'solicitor Retainer Compared With Settlement Agent Retainer' 'causation and Reliance']

Case Brief

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Procedural Posture

Application for Damages for Misleading or Deceptive Conduct, Breach of Contract and Negligence Arising From Failure to Arrange Insurance for Purchased Commercial Property / Final Judgment After Hearing; Applicant's Motion Filed 12 May 1998 Dismissed

Legal Issues

  1. 1 ["Whether Mr Pinner and MLC engaged in misleading or deceptive conduct by representations, silence or omissions concerning transfer or assignment of Mrs Squire's insurance policy to the applicant." 'Whether MLC was responsible for the conduct of its Harvey agent, Mr Pinner, in relation to the alleged insurance arrangements.' 'Whether Ascot Realty Pty Ltd was retained by the applicant as settlement agent.' 'Whether Mr Francesco Scali, as settlement agent, owed contractual or tortious duties to ensure or advise about adequate insurance cover for the Building.' 'Whether the duty of a Western Australian settlement agent retained to attend to completion and settlement was co-extensive with that of a solicitor retained for the same transaction.']

Ratio Decidendi

The applicant failed against Mr Pinner and MLC because the central express representation that Mr Pinner was fixing everything up was not proved, the post-fire representation could not have induced pre-fire reliance, the pleaded enquiries and silence were not established or relied upon, and any belief held by the applicant resulted from other matters including what he was told by his cousin rather than misleading or deceptive conduct by Mr Pinner. The claim against Ascot failed because there was insufficient evidence that the applicant dealt with or retained Ascot Realty Pty Ltd. The claim against Mr Francesco Scali failed because, although he owed a duty to take reasonable care in...

Court Disposition

Application dismissed; applicant's motion filed on 12 May 1998 dismissed with costs; applicant to pay respondents' costs.

Orders

  • ["The applicant's motion, notice of which was filed on 12 May 1998 be dismissed with costs." 'The application be dismissed.' "The applicant pay the respondents' costs of the application." 'Any party have liberty to apply in relation to matters of taxation of costs of the type raised today by counsel for the third...