Morton, M & Anor v Black, D.R. [1988] FCA 401

JUDGMENT No. AQ BS ene

CATCHWORDS

Trade Practices Act, s.52 ~ Sale of farm - Whether "in trade or

commerce" — Whether such a_ sale falls within the principle of Bevanere v. Lubidineuse 7 F.C.R. 325 —- Representations made by

telephone.

Trade Practices Act 1974, ss.6(3), 52, 87

MORTON & ANOR -V-— BLACK

NSW G.345 of 1985

Burchett J. Sydney 28 July 1988

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.345 of 1985 ) )

GENERAL DIVISION

BETWEEN: MARY MORTON

First Applicant

ALEXANDER WIASAK

Second Applicant

DONALD ROSS BLACK

Respondent

REASONS FOR JUDGMENT

BURCHETT J.

On 22 November 1985 Mary Morton (to whom I shall refer as Mrs. Morton) applied to this Court for interlocutory and permanent orders restraining Donald Ross' Black (who was' called from time to time by witnesses "Rocky" and to whom I shall refer as Mr. Black) from offering or selling certain land near Macksville by way of mortgagee's sale. She obtained some anterlocutory relief, which was subsequently withdrawn, and then, after the commencement of the final hearing in the latter half of the next year, in part restored. On 17 February 1986 a statement of claim was filed alleging, in substance, breaches by Mr. Black

of ss.52 and 53A(1)(b) of the Trade Practices Act 1974, and also

fraud at common law. I shall not set out the terms of this

statement of claim, which bears the marks of careless preparation

2.

and was the subject of a number of subsequent amendments. However, it is fair to say that the amendments do not depart from the basic case made by the original statement of claim, except in so far as they join an additional applicant, correct errors of date, and vary a particular allegation, to be referred to later, in respect of a representation alleged to have been made

concerning a subdivision of part of the land in question.