Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136

FEDERAL COURT OF AUSTRALIA

Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136

CONTRACT – no clear evidence of offer and acceptance – examine conduct of parties to determine if they have agreed to incur reciprocal obligations – commercial arrangement may strongly suggest contract – agreement on essential elements only

PARTNERSHIP – application of s 2 of Partnership Act 1892 (NSW) – importance of agency and relationship of mutuality of rights and obligations in establishing partnership – agreement to make mortgage payments more consistent with profit sharing than with dividend payment – no agreement as to duration and therefore terminable at will – fiduciary obligations regardless of whether partnership agreement concluded or not

TRADE PRACTICES – misleading and deceptive conduct – representations as to existing fact and representations as to future matters – representation by silence – conduct directed toward particular persons examined from their perspective – operation of s 51A Trade Practices Act 1974 (Cth) – party making representation must establish reasonable grounds on balance of probabilities – representation of ownership without legal or equitable interest or prospect of acquiring such interest misleading – contributory conduct by other party irrelevant where no reasonable grounds for making representation at time it was made – damages and causation – carelessness of representee no basis for excluding relief

WORDS AND PHRASES – "evidence to the contrary" – "owns"

Trade Practices Act 1974 (Cth) ss 6, 51A, 52, 75B, 82, 87 Fair Trading Act 1987 (NSW) ss 41, 42, 68 Partnership Act 1892 (NSW) ss 1, 2, 26, 32

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 distinguished Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276 not followed Birtchnell v The Equity Trustees, Executors and Agency Company Limited (1929) 42 CLR 384 applied Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 cited Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 applied Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 applied Duke Group Ltd (in liq.) v Pilmer (1999) 73 SASR 64 discussed Edwards v Skyways Ltd [1964] 1 WLR 349 applied Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 applied Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 considered First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 referred to GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited (2003) 128 FCR 1 cited GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 applied Henville v Walker (2001) 206 CLR 459 applied Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 cited John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 cited Kimberly NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054 applied Pilmer v Duke Group Ltd (2001) 207 CLR 165 discussed Pobijie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105 cited Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487 cited Ting v Blanche (1993) 118 ALR 543 applied Toyota Motor Corporation Australia v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 applied United Dominions Corporations Limited v Brian Proprietary Limited (1985) 157 CLR 1 applied Wardle Australia Limited v The State of Western Australia (1992) 175 CLR 514 applied Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 discussed