Karedis Enterprises Pty Ltd & Anor v Antoniou, R. & Anor [1995] FCA 463

Karedis Enterprises Pty Ltd & Anor v Antoniou, R. & Anor [1995] FCA 463

The appeal should be allowed in part because the trial judge erred in some aspects of assessing damages and in treating the limitation period as a fixed twelve months after trading commenced; however, the judge's findings as to the making and reliance upon the misrepresentations were supported by credibility findings which are not disturbed on appeal. The issue of when loss was reasonably ascertainable and the precise calculation of damages require remittal to the trial judge. The cross-claim calculation was also in error due to misinterpretation of the rent review clause and should be remitted.

Jurisdiction
Australia
Judgment Date
05 July 1995
Procedural Posture
Appeal / Judgment on Appeal From a Single Judge
Outcome
Appeal allowed in part; matter remitted to trial judge for further determination.
Legal Topics
['misleading and Deceptive Conduct' 'damages' 'lease Agreements' 'limitation Period' 'common Law Claims' 'reliance on Representations' 'mitigation of Loss']
['trade Practices' 'contract Law' 'tort Law' 'commercial Law' 'limitation of Actions'] ['misleading and Deceptive Conduct' 'damages' 'lease Agreements' 'limitation Period' 'common Law Claims' 'reliance on Representations' 'mitigation of Loss']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From a Single Judge

Legal Issues

  1. 1 ['Whether the appellants engaged in misleading or deceptive conduct under s52 of the Trade Practices Act 1974 by making representations about anticipated takings from a cafe business.' 'Whether such representations were relied upon by the respondents in entering into a lease.' 'Whether damages should be calculated as the trial judge determined, including issues of double-counting and mitigation.' 'From what date does the limitation period commence for the purposes of claims under the Trade Practices Act 1974 when loss or damage is contingent or delayed.']

Ratio Decidendi

The appeal should be allowed in part because the trial judge erred in some aspects of assessing damages and in treating the limitation period as a fixed twelve months after trading commenced; however, the judge's findings as to the making and reliance upon the misrepresentations were supported by credibility findings which are not disturbed on appeal. The issue of when loss was reasonably ascertainable and the precise calculation of damages require remittal to the trial judge. The cross-claim calculation was also in error due to misinterpretation of the rent review clause and should be remitted.

Court Disposition

Appeal allowed in part; matter remitted to trial judge for further determination.

Orders

  • ['The appeal be allowed in part.' 'The judgment in favour of the applicant be set aside.' 'Application be remitted to Justice Einfeld to determine in accordance with law: (a) whether cause of action under the Trade Practices Act 1974 is statute barred; (b) whether the applicants should succeed in their claims at...