IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISTON BETWEEN: WARREN JOHN MYERS ) QLD G104 of 1985 & ELIZABETY FIONA MYERS AND: TRANSPACIFIC PAST Applicant ORAL CO. PTY, LTD. Respondent MINUTES OF ORDER JUDGE MAKING OPDER: PINCUS J. DATE OF ORDEP 18 FEBRUARY 1986 WHERE MADE: BRISBANE THE COURT CROERS THAT: i The respondent pay the applicants the sum of $5,369. 2 The respondent pay the applicants' costs of and incidental tc this aprlication to be taxed if not agreed. NOTE: Settlement and entry of orders is dealt with in of the Federal Court Rules. Order 36 same thing. Under those paragraphs, the applicants led evidence that they were told the land in question was a rich sandy loam suitable for use in growing flowers and vegetables commercially. The apolicants proved that the land is totally unsuitable for the purpose mentioned. It is neither friable nor fertile and drains badly. The evidence is that it is suitable for grazing only, at a carrying capacity, in a reasonable season the poor quality of the so1l 121s unsuitable fer commercial cropping. The mygalnty oof the land i¢ not oir issue ani 'the main factual dispute 1-2 as tc whether Mr, Eone wade the statements atteibuced tc him by the applicants. Mr, Bone says he was not asked for any information about the nature of the land me volunteer any, although he admits there were a number of conversations abcut the transaction before the contract was mace the applicant's recollection of even w greed to buy the land without having inspecteé it, and it seems clear that they hoped to use it commercially. I think it unlikely that they 'ould have refrained entirely (as Mr says they did) from making any enquiry about its quality. It is true that the statements complained of are not to be found in Mr. Bone's letters to the applicants which have, at least in part, the appearance of being so framed as to help in resisting of claim initially alleged fraud, but that allegation was abandoned and I therefore make no finding on it. The next guestion is whether the misleading statements caused the applicants loss and an aspect of this is that the statements I have found to have been made were, arguably, not the main reason for the applicants' decision to buy. Mr. Carmody argued on behalf of the respondent that I should not find that any loss ensued but candidly referred me te the reasons ain Smolonogov v. O'Brien (19282) A.T. P.R. 40 - 212. There reference was made, in considering such & point as this, to Barton v. Armetrong (1974) 4.0, 194 at 118, in support of the prowositicr that 3 'fraudulent misrepresentation inducing the other more weighty causes which contributed to his decisi I would net regard the dictum just quoted as any authority with respect to the availability of relief in consequence of a breach of s.52 of the Trade Practices Act. It appears that special principles as to proof of loss at common law may have evolved for cases of fraudulent mi in a representation, influenced by the rules applied by courts of equity. But the guestion in a claim to recover damages under s.82 15 simply that stated in the section, namely whether the claimant has suffered defence to a claim for damages; it only affects the right to rescind. In a claim for damages for deceit, the prima facie rule is that the defrauded party is awarded price paid less value. That right survives an affirmation, as many reported cases illustrate. Where, as here, the transaction has not heen completed, the damages for deceit cannot be based on the price paid and must be limited te expenditure made tin consequence of the tort: Halebury Vol. 31 Para.1092. The contention that the general law, as applicable to claims in the tort of d¢@eceit, provides an analogy helpful to the respondent must be rejected. Apart from that, the court may look at the matter more broadly uncer s.87(2) of the Trade Practices A [o) co and 1s not confined to considering what remedies would have Lez aw oO n given in an action for The arplicarnts were in possession of the land there was no habitable dwelling, for some months and gained an acvantage from that. On the other hand, 1t does not apoear to me that their occupation was of much value and they built a small dam in the meantime. I hold that they are entitled to damages consisting of a refund of the deposit paid ($4,000) and payment ef their iegal cos s ($1,260) expended in the purchase, making & t total of $5,360. I give judgment for that sum and costs. i certify that this and the 5 preceding pages are a true cory of th 1easons for Judgment here.n of His Honour Mr, Justice Pincus Z s topo Associate Dated 19-32-56.