Paula Susan Chappell as Executor of the Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd

(2021) 58 WAR 503; [2021] WASCA 205

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Consumer Law
2. › Misleading or deceptive conduct
3. › Statutory cause of action for damages
4. › Survival of cause of action on death of plaintiff
5. › Whether executor can maintain action as 'person who suffers loss or damage'
6. › Whether cause of action survives for benefit of estate
7. › Corporations Act 2001 (Cth), s 1041I
8. › Australian Securities and Investments Commission Act 2001 (Cth), s 12GF
9. › Australian Consumer Law (WA), s 236
1. Succession Law
2. › Survival of causes of action
3. › Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4
4. › Whether statutory causes of action for misleading or deceptive conduct are 'causes of action vested in' the deceased
5. › Whether causes of action survive for benefit of estate
1. Constitutional Law (Cth)
2. › Judiciary Act 1903 (Cth), s 79
3. › Picking up of State laws to fill gaps in federal law
4. › Whether s 4 of Law Reform (Miscellaneous Provisions) Act 1941 (WA) picked up and applied to Commonwealth statutory causes of action
5. › Whether gap in Commonwealth law as to survival of actions
1. Statutory Interpretation
2. › Construction of remedial provisions
3. › Meaning of 'person' in statutory cause of action
4. › Whether 'person who suffers loss or damage' includes testamentary successor
5. › Non-assignability of statutory causes of action distinguished from survival on death

Quick Take

Statutory causes of action for misleading or deceptive conduct under s 1041I of the Corporations Act, s 12GF of the ASIC Act, and s 236 of the ACL (WA) survive the death of the person in whom they were vested, by operation of s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA), applied directly to the ACL (WA) claim and via s 79 of the Judiciary Act 1903 (Cth) to the Commonwealth statutory claims. The non-assignability of such causes of action is a distinct question from their survival on death. However, the executor cannot satisfy the statutory description of being a 'person who suffers loss or damage' — the survival mechanism is through the LRMP Act, not through construction of the word 'person'.