Mullins Investments Pty Ltd v Airflite Pty Ltd & Anor [1988] FCA 297

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

BETWEEN:

JUDGE MAKING ORDER: DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS THAT:

JUDGMINT No. 2A. | Bre

LIMITEO DISTRIBUTION

NO. WAG 113 of 1987 MULLINS INVESTMENTS PTY LTD Applicant and AIRFLITE PTY LTD First Respondent and REX AVIATION SALES (NSW) PTY LTD Second Respondent MINUTE OF ORDER FRENCH J. 7 JUNE 1988

PERTH

1. The first respondent is refused leave to interrogate in

terms of its draft interrogatories filed 20 May 1988.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

FEDERAL_CQUET OF

AUSTRALIA

' . \ INCIPAL, wa PRINS BiSIhY . AS REGIST ' \ 7 po \ ae me

IN THE FEDERAL COURT OF AUSTRALIA

) LIMITED DISTRIBUTION

) WESTERN AUSTRALIA )

)

)

DISTRICT REGISTRY

GENERAL DIVISION NO. WAG 113 OF 1987

BETWEEN: MULLINS INVESTMENTS PTY LTD Applicant and AIRFLITE PTY LTD First Respondent and REX AVIATION SALES (NSW) PTY LTD

Second Respondent

CORAM: FRENCH J. 7 June 1988

REASONS FOR JUDGMENT ON APPLICATION FOR LEAVE TO INTERROGATE

In this case the applicant sues the first respondent for damages under s.82 of the Trade Practices Act 1974, for breach of fiduciary duty, breach of contract and for negligence and negligent mis-statement. The action arises out of the alleged purchase by the applicant in December 1986 of a Cessna jet aeroplane VH-FSQ and certain avionic equipment. The applicant alleges that at or about that time, the first respondent offered to procure the sale to it of the aircraft and equipment' then located at Brisbane from an undisclosed vendor for $550,000 and that it appointed the first respondent to act as its agent for that purpose. The applicant complains that the first respondent

falsely represented that necessary repairs could be carried out on

the aircraft for a price not exceeding $150,000 and that, if an order were placed on or before 15 December 1986, the plane could be delivered with all work done by 1 February 1987. The first respondent, it is said, intended to first purchase the aircraft itself for $510,000 and then sell it to the applicant for $550,000, thus profiting to the extent of $40,000, a breach of its fiduciary duty to the applicant. Further it is contended that the first respondent did not disclose to the applicant that' the aircraft had been grounded and lying idle for some eight months, and that a company called Rex Aviation (Qld) Pty Ltd was acting as agent for the undisclosed vendor and stood to make a commission on the sale of the plane. Rex Aviation, it is said, was a corporation "associated with" the second respondent. The first respondent is said to have advised the applicant that the second respondent should inspect and report upon the plane so that' the applicant could decide whether or not to purchase it. This