GIO Australia Holdings Ltd and Ors v Marks, Michael and Ors [1996] FCA 1006

GIO Australia Holdings Ltd and Ors v Marks, Michael and Ors [1996] FCA 1006

While the promotional brochure constituted a misrepresentation that the margin was fixed at 1.25%, the contract documents allowed for GIO to vary the margin subject to notice. As respondents did not prove they could or would have borrowed more cheaply elsewhere, no compensable loss was established under tortious principles or under s 82 of the Trade Practices Act. Gates v City Mutual precluded relief by way of giving contractual effect to the representation. Relief under s 87 was also limited by Gates to consequential loss, not mere expectation loss.

Parties
Appellant: GIO Australia Holdings Limited; Appellant: GIO General Limited; Appellant: GIO Finance Limited; Appellant: GIO Building Society Limited; Respondent: Michael Marks; Respondent: Jeremy Kinross; Respondent: Paul McCullagh; Respondent: Alexandra Williamson
Jurisdiction
Australia
Judgment Date
21 November 1996
Procedural Posture
Civil Appeal / Appeal From Decision of Single Judge of Federal Court of Australia
Outcome
Appeal allowed (orders of primary judge set aside, except as to fourth respondent and costs at first instance; proceeding remitted to primary judge for further determination re fourth respondent and costs)
Legal Topics
Misleading or Deceptive Conduct, Variation of Contract Terms, Measure of Damages, Relief Under Trade Practices Act, Interpretation of Promotional Representations
Trade Practices Contract Law Consumer Protection Misleading or Deceptive Conduct Variation of Contract Terms Measure of Damages Relief Under Trade Practices Act Interpretation of Promotional Representations

Case Brief

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Parties

GIO Australia Holdings Limited

Appellant

GIO General Limited

Appellant

GIO Finance Limited

Appellant

GIO Building Society Limited

Appellant

Michael Marks

Respondent

Jeremy Kinross

Respondent

Paul McCullagh

Respondent

Alexandra Williamson

Respondent

Procedural Posture

Civil Appeal / Appeal From Decision of Single Judge of Federal Court of Australia

Legal Issues

  1. 1 Whether promotional brochure representation that margin was fixed constituted a contractual term
  2. 2 Whether GIO had contractual power to vary the interest margin
  3. 3 Whether GIO's conduct amounted to misleading or deceptive conduct under s 52 Trade Practices Act

Ratio Decidendi

While the promotional brochure constituted a misrepresentation that the margin was fixed at 1.25%, the contract documents allowed for GIO to vary the margin subject to notice. As respondents did not prove they could or would have borrowed more cheaply elsewhere, no compensable loss was established under tortious principles or under s 82 of the Trade Practices Act. Gates v City Mutual precluded relief by way of giving contractual effect to the representation. Relief under s 87 was also limited by Gates to consequential loss, not mere expectation loss.

Court Disposition

Appeal allowed (orders of primary judge set aside, except as to fourth respondent and costs at first instance; proceeding remitted to primary judge for further determination re fourth respondent and costs)

Orders

  • The appeal be allowed.
  • The orders made by Einfeld J be set aside and in lieu thereof it be ordered that the proceeding be dismissed except insofar as it relates to: (i) the fourth respondent, Alexandra Williamson; and (ii) the costs incurred at first instance.