Premiership Investments Pty Ltd & Anor v White Diamond Pty Ltd & Ors [1995] FCA 927

Premiership Investments Pty Ltd & Anor v White Diamond Pty Ltd & Ors [1995] FCA 927

The cause of action under the Fair Trading Act 1987 (WA) survives the death of the respondent by operation of s4(1) of the Law Reform (Miscellaneous Provisions) Act 1941 (WA), as it is a right enforceable at the time of death and not personal in nature or within the statutory exceptions. The estate can therefore be represented in the proceedings to determine liability and appropriate remedies.

Parties
First Applicant: Premiership Investments Pty Ltd; Second Applicant: Thomas McNeil; First Respondent: White Diamond Pty Ltd; Second Respondent: Angelo Forlani; Cross Claimant: White Diamond Pty Ltd; First Cross Respondent: Dakar Nominees Pty Ltd t/as Goodwin Mitchell O'Hehir; Second Cross Respondent: Ronald Winston McBride
Jurisdiction
Australia
Judgment Date
17 November 1995
Procedural Posture
Motion/interlocutory / Appointment of Personal Representative Following Death of Respondent
Outcome
Application allowed; order appointing estate representative made
Legal Topics
Misleading and Deceptive Conduct, Survival of Causes of Action on Death, Appointment of Estate Representatives, State and Federal Legislation Intersection
Trade Practices Consumer Protection Statutory Interpretation Estates Misleading and Deceptive Conduct Survival of Causes of Action on Death Appointment of Estate Representatives State and Federal Legislation Intersection

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Parties

Premiership Investments Pty Ltd

First Applicant

Thomas McNeil

Second Applicant

White Diamond Pty Ltd

First Respondent

Angelo Forlani

Second Respondent

White Diamond Pty Ltd

Cross Claimant

Dakar Nominees Pty Ltd t/as Goodwin Mitchell O'Hehir

First Cross Respondent

Ronald Winston McBride

Second Cross Respondent

Procedural Posture

Motion/interlocutory / Appointment of Personal Representative Following Death of Respondent

Legal Issues

  1. 1 Whether cause of action under state legislation (Fair Trading Act 1987 (WA)) survives death of the respondent
  2. 2 Whether order should be made appointing a personal representative of the deceased respondent's estate
  3. 3 Rules of statutory construction where Commonwealth legislation is silent or partially provides for survival of actions

Ratio Decidendi

The cause of action under the Fair Trading Act 1987 (WA) survives the death of the respondent by operation of s4(1) of the Law Reform (Miscellaneous Provisions) Act 1941 (WA), as it is a right enforceable at the time of death and not personal in nature or within the statutory exceptions. The estate can therefore be represented in the proceedings to determine liability and appropriate remedies.

Court Disposition

Application allowed; order appointing estate representative made

Orders

  • Adele Forlani appointed to represent the estate of Angelo Forlani (deceased) for the purposes of these proceedings.
  • Respondents to pay applicants' costs of the motion to appoint a representative of the estate of the second respondent.