Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd

[2003] NSWCA 305

NSW Court of Appeal

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading or deceptive conduct
3. › Representation by vendor not to rely on statute barring agent's commission
4. › Whether damages under Trade Practices Act constitute 'remuneration' within meaning of Property Stock & Business Agents Act 1941 (NSW), s 42AA
5. › Whether representation established on facts
6. › Trade Practices Act 1974 (Cth), s 52
1. Equity
2. › Estoppel
3. › Estoppel in the face of a statute
4. › Whether estoppel can operate against statutory provision enacted in the public interest
5. › Whether social policy of statute precludes estoppel
6. › Property Stock & Business Agents Act 1941 (NSW), s 42AA
1. Equity
2. › Maxims
3. › Equity will not permit a statute to be used as a cloak for fraud
4. › Scope of the maxim
5. › Whether limited to Statute of Frauds and Statute of Wills analogues
6. › Whether applicable to regulatory statutes of different character
1. Practice and Procedure
2. › District Court
3. › Equitable jurisdiction
4. › Power to grant injunctions ancillary to common law actions
5. › District Court Act 1973 (NSW), s 46

Quick Take

Damages under the Trade Practices Act 1974 (Cth) s 52 for a misleading representation that a vendor would not rely on s 42AA of the Property Stock & Business Agents Act 1941 (NSW) are not 'remuneration' within the meaning of s 42AA, and accordingly the statutory bar does not prevent recovery of such damages — though the representation must be established on the facts. The equitable maxim that equity will not permit a statute to be used as a cloak for fraud is limited to the Statute of Wills (secret trusts) and the Statute of Frauds and statutes in like plight, and does not extend to regulatory statutes of a different character such as s 42AA. No estoppel, legal or equitable, can operate in the face of s 42AA.