Kontos, John & Anor v Mobilia Pty Ltd & Ors [1983] FCA 101

Kontos, John & Anor v Mobilia Pty Ltd & Ors [1983] FCA 101

The applicants failed because the Court did not accept the evidence of their witnesses on the crucial factual issue of whether the alleged representations were made. The Court accepted the evidence of Williams and Lesley where it conflicted with the applicants' witnesses, found the alleged representations were not proved, and therefore dismissed the s.52 claim. The parties had agreed that if the applicants failed, Mobilia Pty. Limited should have judgment on the cross-claim for $61,178.15.

Jurisdiction
Australia
Judgment Date
26 May 1983
Procedural Posture
Application Claiming Damages and Other Relief Under S.52 of the Trade Practices Act 1974, With Cross Claim by Mobilia Pty. Limited / Final Judgment
Outcome
Application dismissed; judgment for Mobilia Pty. Limited against the applicants on the cross-claim.
Legal Topics
['alleged Representations During Lease Negotiations' 'section 52 of the Trade Practices Act 1974' 'credibility of Witnesses' 'judgment on Cross Claim for Monies Owing Under Lease']
['trade Practices' 'misleading or Deceptive Conduct' 'contract' 'lease'] ['alleged Representations During Lease Negotiations' 'section 52 of the Trade Practices Act 1974' 'credibility of Witnesses' 'judgment on Cross Claim for Monies Owing Under Lease']

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Procedural Posture

Application Claiming Damages and Other Relief Under S.52 of the Trade Practices Act 1974, With Cross Claim by Mobilia Pty. Limited / Final Judgment

Legal Issues

  1. 1 ['Whether Mobilia Pty. Limited, by its agents Eric Lesley and Michael Williams, engaged in misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act 1974 during negotiations for the lease.' 'Whether the alleged representations were made that all shops except Shops 12 and 12A had been leased, that the leased shop was the only shop available, and that gross takings would be between $5,500 and $6,000 per week.' 'Whether Mobilia Pty. Limited was entitled to judgment against John Kontos and Nick Kontos for monies owing under the lease if the application failed.']

Ratio Decidendi

The applicants failed because the Court did not accept the evidence of their witnesses on the crucial factual issue of whether the alleged representations were made. The Court accepted the evidence of Williams and Lesley where it conflicted with the applicants' witnesses, found the alleged representations were not proved, and therefore dismissed the s.52 claim. The parties had agreed that if the applicants failed, Mobilia Pty. Limited should have judgment on the cross-claim for $61,178.15.

Court Disposition

Application dismissed; judgment for Mobilia Pty. Limited against the applicants on the cross-claim.

Orders

  • ['The application be dismissed.' 'There be judgment for the first named respondent, Mobilia Pty. Limited, against the applicants in the sum of $61,178.15.' "The applicants pay the respondents' costs."]