Merost Pty Ltd v CPT Custodian Pty Ltd [2014] FCA 97

FEDERAL COURT OF AUSTRALIA

Merost Pty Ltd v CPT Custodian Pty Ltd [2014] FCA 97 Citation: Merost Pty Ltd v CPT Custodian Pty Ltd [2014] FCA 97

Parties: MEROST PTY LTD (ACN 005 272 346) (AS TRUSTEE FOR CD BURGESS FAMILY TRUST) v CPT CUSTODIAN PTY LTD (ACN 077 870 243) (AS CUSTODIAN FOR CENTRO MCS 5)

File number: VID 14 of 2012

Judge: NORTH J

Date of judgment: 19 February 2014

Catchwords: CONSUMER LAW – Misleading or deceptive conduct – s 18 Australian Consumer Law – sale of shopping centre – representation by vendor of incorrect breakeven figure for percentage rent calculation – whether incorrect representation misleading or deceptive in all the circumstances – whether correct breakeven figure discernible from other material provided by vendor – whether applicant relied upon misleading or deceptive conduct – whether applicant indifferent to the representation DAMAGES – damages applicable analogous to damages for tort of deceit – Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 – damages not constrained by analogies to tort – damages awarded reflecting difference between real value and the price paid – contributory negligence – s 137B Competition and Consumer Act 2010 (Cth) – applicant found to have contributed to loss and damage – damages recoverable reduced by 20 per cent – proportionate liability – s 87CB(3) Competition and Consumer Act 2010 (Cth) – whether applicant's solicitors concurrent wrongdoers – applicant's solicitor's conduct informed by retainer with applicant – solicitor not concurrent wrongdoer

Legislation: Australian Consumer Law ss 18, 236 Competition and Consumer Act 2010 (Cth) ss 87CB, 87CD, 137B