Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31

FEDERAL COURT OF AUSTRALIA

Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31 Citation: Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Limited [2012] FCAFC 31

Appeal from: Australian Executor Trustees Limited v Propell National Valuers (WA) Pty Ltd [2011] FCA 522 Australian Executor Trustees Limited v Propell National Valuers (WA) Pty Ltd (No 2) [2011] FCA 966

Parties: PROPELL NATIONAL VALUERS (WA) PTY LTD (ACN 009 455 056) and TRAVIS COLEMAN v AUSTRALIAN EXECUTOR TRUSTEES LIMITED (ACN 007 869 794) and SEIZA MORTGAGE COMPANY PTY LTD (ACN 114 436 412)

File number(s): WAD 209 of 2011 WAD 376 of 2011

Judges: STONE, COLLIER AND GILMOUR JJ

Date of judgment: 20 March 2012

Catchwords: TRADE PRACTICES – misleading or deceptive conduct – negligence – duty of valuers to third party financial institution – expert evidence – whether trial judge ought to have disregarded evidence of sales subsequent to valuation date in determining liability – relevance of authorities accepting evidence of subsequent sale – whether competent valuers could have, using the comparable sales methodology, ascribed relevant value – whether trial judge erred in fact in finding properties comparable – personal liability of employee – whether principles articulated in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 applicable in Australia – requisite knowledge of accessory to contravention of the Trade Practices Act 1974 (Cth) – third party reliance upon misleading or deceptive conduct – whether evidence of agency relationship TRUSTS – whether trustee entitled to commence proceedings if losses to trusts funds – whether trustee required to plead that it had suffered a recoverable loss – power of trustee to commence proceedings on behalf of trust COSTS – indemnity costs – discretion – whether trial judge erred in testing the reasonableness of offer of compromise – whether trial judge had regard to subsequent findings after trial