Scoway Pty Ltd v Faxon Pty Ltd [2004] FCA 249

Scoway Pty Ltd v Faxon Pty Ltd [2004] FCA 249

The pleaded representations were made, were false, and induced the applicant to purchase the business, so the respondents engaged in misleading and deceptive conduct causing loss of $586,321.00. Interest of $53,217.87 was properly included. Because the fourth respondent was the source of the information conveyed by the fifth respondent to the applicant, the fifth respondent was entitled to judgment on its indemnity cross claim to the limited sum sought. The remaining cross claims were dismissed because the cross claimants did not appear and no affidavit evidence was read.

Jurisdiction
Australia
Judgment Date
19 March 2004
Procedural Posture
Misleading and Deceptive Conduct Proceeding With Cross Claims / Final Hearing and Judgment; First, Second, Third and Fourth Respondents Absent
Outcome
Judgment for the applicant against all respondents; judgment for the fifth respondent on its cross claim against the fourth respondent; second and third cross claims dismissed with costs.
Legal Topics
['proof of Service on Absent Respondents' 'leave to Read Affidavits Without Service' 'misleading and Deceptive Conduct' 'false Contractual Warranties' 'indemnity for Misleading or Deceptive Information' 'damages and Interest']
['practice and Procedure' 'trade and Commerce'] ['proof of Service on Absent Respondents' 'leave to Read Affidavits Without Service' 'misleading and Deceptive Conduct' 'false Contractual Warranties' 'indemnity for Misleading or Deceptive Information' 'damages and Interest']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Misleading and Deceptive Conduct Proceeding With Cross Claims / Final Hearing and Judgment; First, Second, Third and Fourth Respondents Absent

Legal Issues

  1. 1 ['Whether the applicant should be given leave to rely on affidavits against absent respondents even though those affidavits may not have been served on them.' "Whether the pleaded representations were made, were false, and induced the applicant to purchase the business known as McGinty's Irish Bar and Restaurant." 'Whether the respondents engaged in misleading and deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW).' 'Whether the fifth respondent was entitled to indemnity or recoupment from the fourth respondent for misleading or deceptive information supplied by the fourth respondent and conveyed by the fifth respondent.' 'Whether the second and third cross claims should be dismissed for non-appearance of the cross claimants.' 'What damages and interest should be awarded to the applicant.']

Ratio Decidendi

The pleaded representations were made, were false, and induced the applicant to purchase the business, so the respondents engaged in misleading and deceptive conduct causing loss of $586,321.00. Interest of $53,217.87 was properly included. Because the fourth respondent was the source of the information conveyed by the fifth respondent to the applicant, the fifth respondent was entitled to judgment on its indemnity cross claim to the limited sum sought. The remaining cross claims were dismissed because the cross claimants did not appear and no affidavit evidence was read.

Court Disposition

Judgment for the applicant against all respondents; judgment for the fifth respondent on its cross claim against the fourth respondent; second and third cross claims dismissed with costs.

Orders

  • ['Judgment be entered in favour of the applicant against the first, second, third and fourth respondents in the sum of $639,538.87.' 'By consent, direct the entry of judgment in favour of the applicant against the fifth respondent in the sum of $639,538.87.' "The respondents pay the applicant's costs of the...