Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Ruaro v Holcomm Marine Pty Limited [2008] FCAFC 174
TORTS – appellants' motor yacht was moored in Point Piper marina pursuant to a mooring agreement with the respondent – yachtdestroyed in severe storm when its mooring was cut by another vessel from same marina which had come loose from its own mooring – primary judge rejected appellants' claim for damages in negligence and breach of warranties implied by the Trade Practices Act 1974 (Cth) – appellants claimed primary judge erred by defining too narrowly the respondent's duty of care, failing to find the exclusion clause in the mooring agreement void for inconsistency with s 74 of Trade Practices Act 1974 (Cth) and failing properly to characterise quantum of damage – appeal answered by factual findings of primary judge on standard of care –no appellable error in factual findings – appeal dismissed
Trade Practices Act 1974 (Cth) ss 68, 74(1), 74(2)
Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 applied Bryan v Maloney (1995) 182 CLR 609 applied E v Australian Red Cross Society (1991) 27 FCR 310 referred to Grant v Australian Knitting Mills Ltd [1936] AC 85 referred to Hawkins v Clayton (1988) 164 CLR 539 referred to Hughes v Lord Advocate [1963] AC 837 referred to New South Wales v Fahy (2007) 81 ALJR 1021 referred to Wyong Shire Council v Shirt (1980) 146 CLR 40 referred to
Miller RV, Miller's Annotated Trade Practices Act (29th ed, Thomson Lawbook Co, 2008) Trindade F, Cane P and Lunney M, The Law of Torts in Australia (4th ed, Oxford University Press, 2007) MARK RUARO AND SECILIA RUARO v HOLCOMM MARINE PTY LIMITED (ACN 062 320 870) NSD 116 OF 2008
JACOBSON, SIOPIS & PERRAM JJ
31 OCTOBER 2008
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 116of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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