Re Western Australia v Wardley Australia Limited; Wardley Australia Securities Limited and Lawrence Robert Connell [1991] FCA 314;

Re Western Australia v Wardley Australia Limited; Wardley Australia Securities Limited and Lawrence Robert Connell [1991] FCA 314; - FCA 1991 case summary — Zoe

[110]

"73. (1) Where -

(a) a corporation (in this section referred to as

the 'supplier') supplies goods, or causes goods

to be supplied, to a linked credit provider of

the supplier and a consumer enters into a

contract with the linked credit provider for the

provision of credit in respect of the supply by

way of sale, lease, hire or hire-purchase of the

goods to the consumer; or

(b) a consumer enters into a contract with a linked

credit provider of a corporation (in this

section also referred to as the 'supplier') for

the provision of credit in respect of the supply

by the supplier of goods or services or goods

and services, to the consumer,

and the consumer suffers loss or damage as a result of

misrepresentation, breach of contract, or failure of

consideration in relation to the contract, or as a

result of a breach of a condition that is implied in

the contract by virtue of section 70, 71 or 72 or of a

warranty that is implied in the contract by virtue of

section 74, the supplier and the linked credit

provider are, subject to this section, jointly and

severally liable to the consumer for the amount of the

loss or damage, and the consumer may recover that

amount by action in accordance with this section in a

court of competent jurisdiction.

(2) Where -

(a) a corporation (in this section also referred to

as the 'supplier') supplies goods, or causes

goods to be supplied, to a credit provider who

is not a linked credit provider of the supplier;

(b) a consumer enters into a contract with the

credit provider for the provision of credit in

respect of the supply by way of sale, lease,

hire or hire-purchase of the goods to the consumer;

(c) antecedent negotiations in relation to the

contract were conducted with the consumer by or

on behalf of the supplier;

(d) the credit provider did not take physical

possession of the goods before they were

delivered to the consumer,

or where a consumer enters into a contract with a

credit provider for the provision of credit in respect

of the supply of services to the consumer by a

corporation (in this section also referred to as the

'supplier') of which the credit provider is not a

linked credit provider, and the consumer suffers loss

or damage as a result of a breach of a condition that

is implied in the contract by virtue of section 70, 71

or 72 or of a warranty that is implied in the contract

by virtue of section 74, the credit provider is not

under any liability to the consumer for the amount of

the loss or damage, but the consumer may recover that

amount by action in a court of competent jurisdiction

against the supplier."

[116]

"74J (1) Subject to this section, an action under a provision

of this Division may be commenced at any time within 3

years after the day on which the cause of action accrued.

(2) For the purposes of this section, a cause of action

shall be deemed to have accrued -

(a) in the case of an action other than an action

under section 74H, on the day on which the

consumer or a person who acquired the goods

from, or derived title to the goods through or

under, the consumer first became aware, or ought

reasonably to have become aware -

(i) in the case of an action under

section 74B - that the goods were

not reasonably fit for the purpose

referred to in that section;

(ii) in the case of an action under

section 74C - that the goods did not

correspond with the description

referred to in that section;

(iii) in the case of an action under section 74D

- that the goods were not of merchantable

quality;

(iv) in the case of an action under

section 74E - that the bulk of the

goods did not correspond with the

sample in quality or the goods had

the defect referred to in that section;

(v) in the case of an action under

section 74F - that the goods

required to be repaired or that the

part was required for the goods, as

the case may be; or

(vi) in the case of an action under

section 74G - of the failure of the

corporation to comply with the

express warranty referred to in that

section; or

(b) in the case of an action under section 74H, on -

(i) the day, or the first day, as the

case may be, on which the seller

referred to in that section made a

payment in respect of, or otherwise

discharged in whole or in part, the

liability of that seller to the consumer

referred to in that section; or

(ii) the day on which a proceeding was

instituted by that consumer against

that seller in respect of that

liability or, if more than one such

proceeding was instituted, the day

on which the first such proceeding

was instituted,

whichever was the earlier.

(3) In an action under a provision of this Division, it is

a defence if the defendant proves that the action was

not commenced within 10 years after the time of the

first supply to a consumer of the goods to which the

action relates."

[123]

"Section 52 is found in Pt V of the Act.

Section 52 (1) provides:

'A corporation shall not, in trade

or commerce, engage in conduct that

is misleading or deceptive or is

likely to mislead or deceive.'

The term 'corporation' is defined in s 4. By

force of s 6, s 52 is given a number of further

and distinct operations based not upon the

identification of a corporation as the actor

involved, but upon engagement by persons,

whether or not corporations, in such activities

as trade and commerce among the States and with

other countries and the use of postal,

telegraphic or telephonic services.

Section 52 does not purport to create liability,

nor does it vest in any party any cause of

action in the ordinary sense of that term;

rather, s 52 establishes a norm of conduct, and

failure, by the corporations and individuals to

whom it is addressed in its various operations,

to observe that norm has consequences provided

for elsewhere in the Act: Brown v Jam Factory

Pty Limited [1981] FCA 35; (1981) 53 FLR 340 at 348. The

consequences are provided for in a range of

remedies found principally (but not

exclusively - see s 163A) in Pt VI of the Act.

The remedies include a declaration (s 163A);

injunction (s 80); disclosure of information and

publication of corrective advertisements (s

80A); recovery of the amount of loss or damage

and prevention or reduction of loss or damage

(ss 82, 87); and prohibition of payment or

transfer of moneys or other property (s 87A).

The class of persons against whom these remedies

lie is not limited to those who have engaged in

conduct which contravenes, is likely to

contravene, s 52 in any one or more of its

operations. Thus, for example, an injunction

may be granted pursuant to s 80 against those

who aid, abet, counsel or procure a person to

contravene a provision of Pt IV or Pt V of the

Act (s 80 (1) (c)), and the amount of loss or

damage to which s 82 refers may be recovered

against any person 'involved in the

contravention', an expression defined in s 75B.

Further, between the particular remedies, there

is variation as to the identity of those with

standing to seek them from the court. Section

82 is directed solely to those persons who have

suffered loss or damage. Sections 80A and 87A

confer standing only on the Minister or the

Commission. Proceedings for declaration may be

instituted by 'a person' and the involvement of

the Minister and the Commission are especially

provided for:

s 163A. As we have indicated, by s 80 standing

to seek injunctive relief is conferred upon 'the

Minister, the Commission or any other person'."

At a glance

Court

Decision date

Source

Judgment (203 paragraphs)

Re Western Australia v Wardley Australia Limited; Wardley Australia Securities Limited and Lawrence Robert Connell [1991] FCA 314; (1991) 13 Atpr 41-130/30 FCR 245/ (17 July 1991)

Parties

Legislation Cited (33)

Cases Cited (31)