RADLEY INVESTMENT CO PTY LTD v AMQUE CLOTHING PTY LTD [1993] NSWCA 308

RADLEY INVESTMENT CO PTY LTD v AMQUE CLOTHING PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and HANDLEY JJA, and POWELL AJA 23 September 1993, 28 October 1993

[1993] NSWCA 308

FACTS: The respondents signed a lease for a shop without having been told of plans to refurbish the shopping centre. Although the plans were never implemented, he succeeded against the landlord in an action for lost profits under s52 of the Trade Practices Act, on the grounds that he would not have taken up the lease had he been appraised of the plans. No rent was paid.

HELD:(per curiam)

The findings of fact are not able to be disturbed, but the case falls outside s52. Silence can only amount to misleading or deceptive conduct if it concerns a matter which the party induced to contract was entitled to expect to be told about: Warner v Elders Rural Finance Ltd (1992) 113 ALR 517 at 523. That was not the case here, where negotiations with the landlord only concerned whether the lease would be assigned or a new lease entered into. The incoming tenant conducted the rest of the negotiations with an agent of the former tenant.

Meagher JA This is an appeal by a landlord, Radley Investment Co Pty Ltd, froma judgment of his Honour Garling DCJ, in favour of a tenant Amque Clothing Pty Ltd, of whom the directors and shareholders were Heinz and Norma Salzberger.

Amque Clothing Pty Ltd is a company which is a manufacturer and wholesaler of clothing, in particular jeans and lingerie. Before February 1989, it conducted this business at Gladesville. In early October 1988 Heinz Salzberger saw, in the Chatswood office of real estate agents called Goldman and May, an advertisement for the sale of the fixtures and fittings of a shop at Crows Nest. The tenant of the shop was a Mrs Menzlekov. The agent with whom he dealt at Goldman and May was a Mr Rosewarne. He discussed with Mrs Menzlekov the fixtures and fittings; he did not discuss or indeed look at the books or records of the business. This was because at this stage he did not propose to purchase either the business or its goodwill or an assignment of Mrs Menzlekov's lease. However, things changed rapidly, and by 11 October Mr Salzberger was anxious that his company should take a lease of Mrs Menzlekov's shop. He bought the fixtures and fittings for $1,800, and sought to obtain an assignment of the tenancy. Mr Rosewarne informed him that a Mr Dalley would have to approve of any assignment. Mr Dalley was the chief executive of the landlord company. Thereafter, he had a discussion with Mr Dalley; he pressed for an assignment; Mr Dalley pressed for the grant of a new lease.