Murphy v Overton Investments Pty Limited [2001] FCA 500

FEDERAL COURT OF AUSTRALIA

Murphy v Overton Investments Pty Limited [2001] FCA 500

TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 82 – "loss or damage" – requirement of causal link between loss or damage and conduct done in contravention of the Trade Practices Act – measure of damage not to be confined by analogy to other causes of action – measure of damage calculated on the basis of loss actually suffered or likely to be suffered – no compensation for a mere loss of expectation – misleading conduct found by primary judge in representations regarding lease of property to appellants by respondent retirement village – unchallenged evidence of appellants that had they not entered lease with respondent they would have entered lease with another retirement village – whether sufficient evidence before primary judge to calculate loss, if any, to appellants on the basis of misleading conduct – relevance of "rule" in Potts v Miller (1940) 64 CLR 282 TRADE PRACTICES – cause of action – when accrued ESTOPPEL – equitable estoppel – identification of assumption adopted – whether reasonable and whether sufficiently precise – whether conduct of respondent unconscionable JURISDICTION – whether s 7(1) of the Contracts Review Act 1980 (NSW) is capable of being exercised by the Federal Court sitting in NSW by virtue of s 79 of the Judiciary Act 1903 (Cth) WORDS AND PHRASES – "loss or damage" – "injury" Trade Practices Act 1974 (Cth) ss 4K, 52, 82, 87 Judiciary Act 1903 (Cth) s 79 Contracts Review Act 1980 (NSW) s 7 Misrepresentation Act 1967 (UK) Potts v Miller (1940) 64 CLR 282, discussed Hawkins v Clayton (1988) 164 CLR 539, cited Pritchard v Racecage Pty Ltd (1997) 72 FCR 203, referred to Marks v GIO Australia Holdings Limited (1998) 196 CLR 494, followed Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1, considered Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, considered Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281, cited Toteff v Antonas (1952) 87 CLR 647, considered Gould v Vaggelas (1985) 157 CLR 215, cited Smith New Court Securities Ltd v Citibank NA [1997] AC 254, cited Blacker v National Australia Bank Ltd [2001] FCA 254, referred to Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1, followed Smith v Smith (1986) 161 CLR 217, distinguished Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, followed Legione v Hateley (1983) 152 CLR 406, considered Commonwealth v Verwayen (1990) 170 CLR 394, followed Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741, cited Blomley v Ryan (1956) 99 CLR 362, cited Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, cited Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, considered Christopoulos v Angelos (1996) 41 NSWLR 700, distinguished Registrar General v Cleaver (1996) 41 NSWLR 713, distinguished Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35, cited Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, cited Murphy v Overton Investments Pty Ltd [2000] FCA 801, referred to NMFM Pty Ltd v Citibank Ltd (No 10) [2000] FCA 1558, referred to Blacker v National Australia Bank Ltd [2000] FCA 681, referred to Kenny & Good v MGICA (1992) Ltd (1999) 199 CLR 413, referred to Tools & Metal Manufacturing v Tungsten Electric [1955] 2 All ER 657, referred to Bank Negara Indonesia v Haolim [1973] 2 MLJ 3 (PC), referred to Brikom Investments v Carr [1979] 1 QB 467 (CA), referred to Austotel Pty Ltd v Franklins Self Serve Pty Ltd (1989) 16 NSWLR 582, referred to S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637, referred to Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 153 ALR 198, referred to Giumelli v Giumelli (1999) 196 CLR 101, referred to Hughes v Metropolitan Railway Company (1877) 2 App Cas 439, referred to Birmingham & District Land Co v North Western Railway Co (1888) 40 ChD 268, referred to Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 169 ALR 324, referred to Olex Focas Pty Ltd v Skoda Export Co Ltd (1996) 134 FLR 331, referred to Jedda Investments Pty Ltd v Krambousanos (1997) 72 FCR 138, referred to Krambousanos v Jedda Investments Pty Ltd (1996) 64 FCR 604, referred to Melverton v Commonwealth Development Bank of Australia (1989) NSW Conv R 55-484, referred to Begbie v State Bank of New South Wales Ltd (1994) ATPR 41-288, referred to Australian Competition & Consumer Commission v Chats House Investments (1996) 71 FCR 250, referred to Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91, referred to R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett (1945) 70 CLR 141, referred to Oraka Pty Ltd v Leda Holdings Pty Ltd (1997) ATPR 41-558, referred to Leda Holdings Pty Ltd v Oraka Pty Ltd (1998) ATPR 41-601, referred to LBC Laws of Australia [35.9] KE Lindgren RP Buckley (2000) 8 TPLJ 5