P-Value Pty Ltd v Willliam McNee & Ors

[2016] VSCA 223

Victorian Court of Appeal

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading or deceptive conduct
3. › Representations in sale of commercial property
4. › Oral representations as to prior offer and tenant quality
5. › Implied representations from non-disclosure
6. › Whether representations established on the evidence
7. › Whether representations caused loss
8. › Trade Practices Act 1974 (Cth), ss 52, 82
9. › Fair Trading Act 1999 (Vic), ss 9, 159
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Causation
4. › Nominee purchaser not party to contract
5. › Whether loss suffered 'by' contravening conduct
6. › Sufficient and direct link between conduct and loss
7. › Whether reliance on rental yield representations materially contributed to decision to complete purchase
8. › Trade Practices Act 1974 (Cth), s 82(1)
1. Tort Law
2. › Proportionate liability
3. › Fraud exception
4. › Whether deeming provision as to knowledge of falsity sufficient to constitute fraud
5. › Whether reckless indifference to truth established
6. › Wrongs Act 1958 (Vic), s 24AM, Pt IVAA
7. › Sale of Land Act 1962 (Vic), s 13
1. Real Property
2. › Sale of land
3. › Nominee purchaser
4. › Whether nomination makes nominee a party to contract of sale
5. › Effect of nomination clause on contractual obligations

Quick Take

The mere operation of the deeming provision in s 13 of the Sale of Land Act 1962 (Vic) is not sufficient to constitute a 'finding of fraud' for the purposes of s 24AM of the Wrongs Act 1958 (Vic), so as to exclude proportionate liability. A nominee purchaser who is not a party to the contract of sale may nevertheless establish causation under s 82(1) of the TPA where the representee's reliance on false representations materially influenced the nominee to complete the purchase. In misleading or deceptive conduct cases, the evidence must support the precise terms of the pleaded representation; a representation that an auction was cancelled 'because' of a prior offer will not be established where the evidence shows the cancellation and the offer were communicated separately by different persons.