92 The plaintiffs further claim that the various representations made about remuneration by the fourth defendant on behalf of all defendants, during August 1991 to January 1997, are actionable on the basis of sections 51A and 52 of the Trade Practices Act and sections 41 and 42 of the Fair Trading Act. The plaintiffs' case is that the statements - that the first and second plaintiffs would be paid their outstanding and further fees, that they were allocated shares in the Lakeside Property Trust, that they would be paid for their services by transfer of the house and land or the monetary equivalent, were all representations by the fourth defendant in his personal capacity and on behalf of the second and third defendants, with respect to future matters as referred to in sections 51A and 41. As a result, the plaintiffs contends, an absence of reasonable grounds on the part of the defendants for the making of the representations caused them to be misleading (s.51A(1), s.41(1)), so that, under sections 51A(2) and 41(2), the burden in any proceedings would be upon the defendants to show that they had reasonable grounds. From there, the plaintiffs argue that, because, in this case, the defendants do not attempt to put forward any such reasonable grounds, the representations are placed by s.51A and s.41 within the ambit of sections 52 and 42 the non-correspondence between the subject matter of the representations and the events which eventually unfolded means that a breach of sections 52 and 42 is established and the various statutory consequences, in terms of orders of the court, would be available, including orders requiring one or more of the defendants to compensate the plaintiffs for their consequent loss or damage.
93 I consider the impugned representations before determining whether the defendants had reasonable grounds for making the representations. It is necessary to take into account the overall context in which the representations were made: see Pappas v Soulac Pty Ltd (1983) ATPR 40-411 at p.44,782 (Fisher J); Elders Trustee & Executor Co Ltd v E.G. Reeves Pty Ltd (1987) ATPR (Digest) ¶46-030 at p.53,086 (Gummow J). In particular, Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199, provided that:
"The question whether particular conduct of which complaint is made is misleading or deceptive or likely to mislead or deceive is, in the ordinary case, a question of fact to be answered in the context of evidence as to the alleged conduct and as to the relevant surrounding facts and circumstances."
94 Similarly in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199, Gibbs CJ held that:
"The case of a defendant must be viewed as a whole. It would be wrong to select some words or act, which, alone, would be likely to mislead if those words or acts, when viewed in their context, were not capable of misleading. It is obvious that where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words."
95 Here, the representations were made over a period of time during which the arrangement among the parties was varied on several occasions. I have already found that the first and second plaintiffs came to accept that their fees would be paid at the discretion of the third and fourth defendants and that the house and land or monetary equivalent was conditional upon their servicing the project until it was complete. On the first plaintiff's evidence, the first plaintiff knew that the allocation of shares in Lakeside Property Trust was overtaken by the plaintiffs' choice to accept the promise of land. Consequently, the representations were not capable of misleading or deceiving when taken in their context wherein the parties had agreed that that fees need not be paid, that the transfer of house and land or the monetary equivalent would replace the allocation of shares in Lakeside Property Trust and was conditional upon the plaintiffs servicing the project until its completion. Moreover, the context of the representations would also negative the element of the plaintiffs' reliance necessary for the causal connection between actionable conduct and the loss or damage suffered for the purpose of the Acts.
96 Mr Newton submits that the claims are barred under the three year limitation periods imposed by the applicable versions of the Trade Practices Act (s.82(2)) and the Fair Trading Act (s.68(2)), respectively. The cause of action under s.82 of the Trade Practices Act accrues when the loss or damage is suffered as a result of the contravention of s.52: see Fenech & Anor v Sterling (1983) ATPR ¶40-413 at p.44,812 (Davies J); Arcadi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR 40-473 at p.45,454 (Toohey J); James & Ors v ANZ Banking Group Ltd & Ors (1986) ATPR ¶46-005 at p.53,035 (Toohey J). Similar considerations apply to the Fair Trading Act. In light of my findings, there is no relevant loss or damage to activate the statutory remedies under the Trade Practices Act or the Fair Trading Act.
Conclusion
97 In the result, therefore, the plaintiffs' claim fails in all its branches and they are not entitled to any relief. The proceedings are therefore dismissed with costs.
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