NSW Caselaw
New South Wales Court of Appeal
CITATION : Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176 FILE NUMBER(S) : CA 40843/98 HEARING DATE(S) : 9, 10, 11 May 2000 JUDGMENT DATE : 14 July 2000
Textralian Enterprises Pty Ltd as Trustee of B & M Activities Trust; B & M Activities Pty Ltd as former Trustee of B & M Activities Trust; Bennett Joseph Slattery; Rhonda Daily Slattery (Appellants) PARTIES : Perpetual Trustees Victoria Limited; Australian Prime Property Fund Custodian Pty Ltd; Perpetual Trustee Company Limited (Respondents) JUDGMENT OF : Priestley JA at 1; Fitzgerald JA at 4; Heydon JA at 16
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 5027/07 FILE NUMBER(S) : ED 4497/97 LOWER COURT Young J JUDICIAL OFFICER :
COUNSEL : E Conditsis (Appellants) B W Walker SC/H K Insall (Respondents) SOLICITORS : Conditsis & Associates (Appellants) Freehill Hollingdale & Page (Respondents) CATCHWORDS : TRADE PRACTICES - MISREPRESENTATION - appellant lessees contended that they were induced by agents for the respondent lessors to enter into two leases of premises in the Erina Fair Shopping Centre. In the proceedings below the appellants sought to have the terms of the second lease varied under s 87 Trade Practices Act 1974 (Cth) and damages for misrepresentation under s 51A. - Appeal against finding by trial judge that relief could not be obtained on the grounds of misrepresentation in relation to both leases. - Held that the trial judge did not err in finding that the appellants' evidence was unacceptable on the basis of credit. - EVIDENCE - fresh evidence - Held that the appellants were not permitted to admit fresh evidence on appeal as the grounds in s 75A(7)(8) and (9) Supreme Court Act 1970 had not been met. ND LEGISLATION CITED : Trade Practices Act 1974 (Cth) Supreme Court Act 1970 (NSW) Akins v National Australia Bank (1994) 34 NSWLR 155 CASES CITED: Aroutsidis v Illawarra Nominees Pty Ltd (1992) 21 FCR 500 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 DECISION : Appeal dismissed; appellants to pay the respondents' costs
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