Brown, Lionel & Anor v Jam Factory Pty Ltd & Anor [1981] FCA 34

Brown, Lionel & Anor v Jam Factory Pty Ltd & Anor [1981] FCA 34

The applicants were induced to take a lease by misleading statements made on behalf of the respondents that almost all shops in the complex were let and would be open at launch, which was untrue. This contravened s.52(1) of the Trade Practices Act and caused them quantifiable loss. Damages are to be awarded, discounted for contingencies not attributable to the misrepresentation.

Parties
Applicant: Lionel Brown; Applicant: Marlene Benbow (later Mrs. Brown); First Respondent: Jam Factory Proprietary Limited; Second Respondent: L.J. Hooker (Vic) Limited
Jurisdiction
Australia
Judgment Date
26 March 1981
Procedural Posture
Damages Claim Under Statute (trade Practices Act 1974) / Judgment After Trial
Outcome
Judgment for the applicants. Injunction granted. Costs to applicants.
Legal Topics
Misrepresentation, Damages for Misleading Conduct, Injunction Against Proceedings, Lease Inducement, Section 52 Trade Practices Act 1974
Trade Practices Misleading or Deceptive Conduct Commercial Leases Misrepresentation Damages for Misleading Conduct Injunction Against Proceedings Lease Inducement Section 52 Trade Practices Act 1974

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Parties

Lionel Brown

Applicant

Marlene Benbow (later Mrs. Brown)

Applicant

Jam Factory Proprietary Limited

First Respondent

L.J. Hooker (Vic) Limited

Second Respondent

Procedural Posture

Damages Claim Under Statute (trade Practices Act 1974) / Judgment After Trial

Legal Issues

  1. 1 Whether the respondents, through their agent, made false or misleading representations in contravention of s.52(1) and/or s.53A(1)(b) of the Trade Practices Act 1974 regarding the number of let shops and trading prospects of Jam Factory complex.
  2. 2 Whether such conduct caused loss and damage to the applicants.
  3. 3 Whether an injunction should restrain lessor's parallel claim for rent and possession.

Ratio Decidendi

The applicants were induced to take a lease by misleading statements made on behalf of the respondents that almost all shops in the complex were let and would be open at launch, which was untrue. This contravened s.52(1) of the Trade Practices Act and caused them quantifiable loss. Damages are to be awarded, discounted for contingencies not attributable to the misrepresentation.

Court Disposition

Judgment for the applicants. Injunction granted. Costs to applicants.

Orders

  • Judgment in favour of applicants for $17,000.
  • First respondent is restrained from continuing with Action No. 3774 in the Supreme Court of Victoria or any action to recover any amount under agreement for lease, lease or occupancy of shop No. 102 in the Jam Factory, South Yarra, from the applicants.