Federal Court of Australia
- ™N
JUDGMENT No, FAb/ S7
FOR DISTRIBUTION)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No. VG 40 of 1986
GENERAL DIVISION
BETWEEN:
MARLRAY PTY LTD
Applicant
and
WILMINK CONSTRUCTIONS PTY LTD and W. THEUNISSEN
Respondents
MINUTES OF ORDER
COURT: Woodward J.
DATE: 18 December 1987
PLACE: Melbourne
THE COURT ORDERS THAT:
The applicant pay the respondents' costs.
(NOTE: Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No. VG 40 of 1986
wee ww
GENERAL DIVISION
BETWEEN:
MARLRAY PTY LTD
Applicant
and
WILMINK CONSTRUCTIONS PTY LTD and W. THEUNISSEN
Respondents
COURT: Woodward J.
DATE: 18 December 1987
PLACE: Melbourne
REASONS FOR JUDGMENT
This action arose from the sale of a sub-—newsagency business which included a Tattersalls agency. The applicant purchaser, which is still running the business, alleged that the respondent company, in May 1984, just before a contract was entered into on 1 June 1984, misrepresented its takings
and profits.
The principal of the applicant company went into
occupation on 3 September 1984 after working in the business
e
with the second respondent for at least two weeks. He said in evidence that the takings seemed to be down at this time but, after speaking to his solicitor he decided to go ahead with the settlement of the contract. A solicitors' letter was sent on 9 October 1984, seeking accurate sales figures for Tattslotto and Soccer Pools for the financial year 1983/84. This was followed over a year later, on 13 November
1985, by a letter of demand, alleging misrepresentation and
claiming $96,876 damages.
An application was filed in this Court on 11 March 1986 and the matter finally came on for trial on 3 December 1987. On the morning of the fourth and final day of the hearing, after most of the evidence had been given, the applicant's counsel announced that it no longer wished to
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