Antonio, Richard Paul & Anor v Robson, Gary Francis & Anor [1984] FCA 65

v. GARY FRANCIS ROBSON (First Respondent) and ESANDA LIMITED (Second Respondent)

IN THE FEDERAL CQURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G8 of 1984 )

AND: GARY FRANCIS ROBSON First Respondent AND: ESANDA LIMITED Second Respondent QORDEP JUDGE MAKING ORDER: FITZGERALD J. DATE OF ORDER: 28 MARCH 1984 WHERE MADE: BRISBANE THE COURT ORDERS THAT:

1. Sub-paragraph l1l(iit) of the Statement of

Claim be struck out with liberty to the applicants to re-plead on or before Tuesday 10 April 1984 to rely on para 6{1)(a) of the Queensland Hire Purchase Act but not in connection with their claim to relief under ss. 82 and 87 of the Trade Practices Act.

The applicants pay to the cecond respondent 1ts vtaxed costs of and incidental to ats motion filed on 22 March 1984 and the proceedings consequent thereon.

3. The application tor directions be adjourned to 9 a.m. on Thursday 12 April

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G8 of 1984

AND: GARY FRANCIS ROBSON First Respondent AND: ESANDA LIMITED

The applicants acquired a generator from the second respondent, a finance company, under a hire purchase agreement dated 7 October 1983. The generator was supplied by the first respondent, a dealer in machinery. The applicants allege that certain statements were made by the dealer which caused them to enter into the hire purchase agreement and which became terms of the hire purchase agreement. Various causes of action are asserted by the applicants against each of the respondents,

including claims under the Hire Purchase Act 1959 (Queensland),

for breach of contract, for negligent misstatement, and for deceit or alternatively innocent misrepresentation. The applicants allege that they have rescinded the hire purchase agreement or terminated it for breach and seek damages and other relief. All claims are brought in this Court on the basis that it has jurisdiction because of further claims made by the applicants against each respondent under ss. 82 and 87 of the

Trade Practices Act 1974 ("the Trade Practices Act").

The applicants allege that the dealer's statements constituted contraventions of sub-ss. 52(1), 53(a) and 53(c) of

the Trade Practices Act. So far as is presently relevant, the

applicants' Statement of Claim founds the applicants' claims

against the finance company under the Trade Practices Act on the

allegation that the dealer's statements were "made by" the dealer "for andon behalf of" the finance company in that the statements "are deemed pursuant to s.6(1)(a) of the Hire Purchase Act (Queensland) to have been made by an agent of" the finance

Both parties have requested that the Court determine as a preliminary question of law whether the applicants can

establish claims against the finance company under s.82 or s.87

of the Trade Practices Act on the basis of such an allegation.

Paragraph 6(1)(a) of the Hire Purchase Act (Queensland)

(1) Every representation, warranty, or statement made to the hirer or prospective hirer, whether orally or in writing, by the .-. dealer or any person acting on behalf of the ... dealer in connection with or in the course of negotiations leading to the entering into of a hiré-purchase agreement shall confer on the hirer -

(a) As against the owner - the same rights {including the right to rescind the agreement) as the hirer would have had if the representation, warranty, or statement had been made by an agent of the owner; and

It is convenient to note at the outset that the question presently posed does not relate to whether any "rights" are given

to the applicants under para. 6(1)(a) of the Queensland Hire Purchase Act identical to those which the applicants "would have

had" under the Trade Practices Act "if the ... statement had been

made by an agent" of the finance company: cf. Mihaljevic v. Eiffel Tower Motors Pty Ltd [1973] V.R. 545, 558. Were paragraph

6(1)(a) of the Queensland Hire Purchase Act to be so interpreted,

the applicants' "rights" would arise under that legislation, not the Trade Practices Act. The finance company does not suggest that the existence of such "rights" would be inconsistent with

the Trade Practices Act. What is of present concern is the much

narrower question whether as a consequence of para. 6(1)(a) of

the Queensland Hice Purchase Act the epplicants have a claim

which they otherwise would not have against the finance company

Sections 82 and 87 of the Trade Practices Act operate by reference to conduct of a corporation done in contravention of a provision of, inter alia, Part V, including statements made by a corporation that are misleading or deceptive or likely to mislead or deceive (sub-s. 52(1)) or which are false representations Which meet the description contained in sub-s. 53(a) or representations of the type described in sub-s. 53(c). Statements made by an agent of a corporation are by sub-s. 84(2)

deemed for the purposes of the Trade Practices Act to have been

An interesting question concerning the construction of

sub-s. 84(2) of the Trade Practices Act would arise 1f the effect

of 'para. 6(1)(a) of the Queensland Hire Purchase Act was to

constitute the maker of a statement of the character referred to therein "an agent of the owner". In that event, it would be necessary to consider whether, by reason of the statutory agency created the maker of the statement was an "agent" within the meaning of sub-s. B4(2). However, para. 6(1)(a) of the

Queensland Hire Purchase Act has no such operation even though in

many cases it may have the same practical effect. Paragraph

6(1)(a) of the Queensland Hire Purchase Act does not deem the

maker of the statement "an agent of the owner"; it merely gives the hirer the same rights against the owner as the hirer would have had if the maker of the statement had been "an agent of the

In my opinion, there is nothing in para 6(1)(a) of the

Queensland Hire Purchase Act which purports to extend the

operation of the relevant provisions of the Trade Practices Act

to statements which do not constitute contraventions of that Act

Accordingly the question of law must be answered in the negative. A consequential order 1s needed striking out the relevant section of the applicants' Statement of Claim. However, the relevant sub-paragraph, 11(1ii), also raises para. 6(1)(a) of

the Queensland Hire Purchase Act in connection with other claims

by the applicants. In the circumstances, I order that sub-paragcaph li(iii) of the Statement of Claim be struck out with liberty to the applicants to re-plead on or before Tuesday 10 April 1984 to rely on para 6{1)(a) of the Queensland Hire Purchase Act but not in connection with their claim to relief

under ss. 82 and 87 of the Trade Practices Act. The applicants

must pay to the second respondent its taxed costs of and incidental to its motion filed on 22 March 1984 and the proceedings consequent thereon. The application for directions