Poliwka v Girgis

[2021] WASCA 30

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading or deceptive conduct
3. › Damages under s 82 Trade Practices Act 1974 (Cth)
4. › Causation
5. › Loss incurred after plaintiff becomes aware of falsity of representation
6. › Whether continued advances to joint venture after awareness of misleading conduct causally connected to contravening conduct
7. › Whether reasonable for plaintiff to continue funding in context of adviser/advisee relationship and joint venture
8. › Trade Practices Act 1974 (Cth), ss 52, 82
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Damages under s 82 Trade Practices Act 1974 (Cth)
4. › Measure of damages
5. › Date of assessment of loss
6. › Whether advances should be valued as at date plaintiff should have ceased funding or date plaintiff actually ceased funding
7. › Trade Practices Act 1974 (Cth), s 82
1. Damages
2. › Quantification of damages
3. › Valuation of assets for assessment of loss
4. › Whether trial judge erred in accepting expert valuation of hotel property
5. › Whether respondents failed to discharge onus of proof as to irrecoverability of advances
1. Tort
2. › Negligent misstatement
3. › Adviser and advisee relationship
4. › Causation of loss
5. › Whether losses from continued advances after awareness of negligent misstatement causally connected to negligent conduct

Quick Take

Where a plaintiff induced by misleading or deceptive conduct to enter a joint venture continues to fund the venture after becoming aware of the falsity of the representation, the reasonableness of continued funding for the purposes of causation under s 82 of the Trade Practices Act must be assessed having regard to the totality of the circumstances, including the nature of the adviser/advisee relationship, the joint venture structure, the plaintiff's personal circumstances and commercial experience, the availability of independent advice, and the broader commercial relationship between the parties. The typical 'trading loss' analysis applicable to arm's length vendor/purchaser transactions may be inapplicable where the parties are joint venturers in an unequal relationship.