Barnett, Thomas James & Ors v Abvay Pty Ltd & Ors [1984] FCA 465

Barnett, Thomas James & Ors v Abvay Pty Ltd & Ors [1984] FCA 465

The representations alleged were not established on the balance of probabilities. The statement that the company was 'the owner' was, in ordinary usage, correct and not misleading in context. No misleading or deceptive conduct, collateral contract, or negligent misstatement was established. None of the respondents are liable under section 52 or in tort.

Parties
First Applicant: Thomas James Barnett; First Applicant: Joan Mary Barnett; Second Applicant: Peter Andrew Gorman; Second Applicant: Joan Margaret Gorman; First Respondent: Abvay Pty. Ltd.; Second Respondent: Kenneth James Polla; Third Respondent: Brian Samuel Totterdell; Third Respondent: Jeanette Lesley Totterdell
Jurisdiction
Australia
Judgment Date
21 December 1984
Procedural Posture
Civil / Liability (determined Separately From Damages)
Outcome
Application dismissed with costs (except as against Abvay Pty Ltd).
Legal Topics
Misleading or Deceptive Conduct, Negligent Mis Statement, Collateral Contract, Liquidation of Developer
Trade Practices Contracts Torts Misleading or Deceptive Conduct Negligent Mis Statement Collateral Contract Liquidation of Developer

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Parties

Thomas James Barnett

First Applicant

Joan Mary Barnett

First Applicant

Peter Andrew Gorman

Second Applicant

Joan Margaret Gorman

Second Applicant

Abvay Pty. Ltd.

First Respondent

Kenneth James Polla

Second Respondent

Brian Samuel Totterdell

Third Respondent

Jeanette Lesley Totterdell

Third Respondent

Procedural Posture

Civil / Liability (determined Separately From Damages)

Legal Issues

  1. 1 Whether representations regarding ownership and security made to the applicants were misleading or deceptive under s.52 of the Trade Practices Act 1974
  2. 2 Whether the estate agent or directors were liable for statements or negligent misstatement
  3. 3 Whether any collateral contract or negligent mis-statement exists

Ratio Decidendi

The representations alleged were not established on the balance of probabilities. The statement that the company was 'the owner' was, in ordinary usage, correct and not misleading in context. No misleading or deceptive conduct, collateral contract, or negligent misstatement was established. None of the respondents are liable under section 52 or in tort.

Court Disposition

Application dismissed with costs (except as against Abvay Pty Ltd).

Orders

  • The application be dismissed as against all respondents other than Abvay Pty. Ltd.
  • The applicants pay the costs of the respondents (other than Abvay Pty. Ltd.) of the application.