White, J.G. & Anor v. The Associates Financial Services Ltd & Ors [1985] FCA 528

White, J.G. & Anor v. The Associates Financial Services Ltd & Ors [1985] FCA 528

The claims failed because neither the first respondent nor Mr Shearer made or could be taken to have made any representation or undertaking that the $28,000 loan would be provided unconditionally save for mere formalities; all actions and communications were on the basis the second mortgage was registerable and that the other encumbrances could be discharged for the disclosed sums. Failure to obtain the necessary discharge from Knox Credit Union, due to the unforeseen guarantee-related claim, frustrated the transaction and was not the responsibility of the respondents.

Parties
Applicant: John Gordon White & Anor; First Respondent: The Associates Financial Services Limited; Second Respondent: Guild Court Investments Pty Limited; Third Respondent: Bruce Charles Shearer
Jurisdiction
Australia
Judgment Date
18 September 1985
Procedural Posture
Civil / Judgment
Outcome
Proceedings dismissed
Legal Topics
Misrepresentation, Trade Practices Act 1974, Negligence of Financial Adviser, Loan Approval Conditions
Contract Law Trade Practices Misrepresentation Trade Practices Act 1974 Negligence of Financial Adviser Loan Approval Conditions

Case Brief

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Parties

John Gordon White & Anor

Applicant

The Associates Financial Services Limited

First Respondent

Guild Court Investments Pty Limited

Second Respondent

Bruce Charles Shearer

Third Respondent

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the first respondent made representations as to unconditional loan approval and thereby induced the applicants to sign a lease.
  2. 2 Whether the second respondent (and Mr Shearer) negligently or misleadingly represented that the loan was a mere formality.

Ratio Decidendi

The claims failed because neither the first respondent nor Mr Shearer made or could be taken to have made any representation or undertaking that the $28,000 loan would be provided unconditionally save for mere formalities; all actions and communications were on the basis the second mortgage was registerable and that the other encumbrances could be discharged for the disclosed sums. Failure to obtain the necessary discharge from Knox Credit Union, due to the unforeseen guarantee-related claim, frustrated the transaction and was not the responsibility of the respondents.

Court Disposition

Proceedings dismissed

Orders

  • The case against each respondent is dismissed with costs, including reserved costs.
  • A stay of three months on the payment of costs is granted, with leave to any respondent to apply to lift the stay.