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Cases (new)

Here you will find links to new decisions relating to competition and consumer law and associated catchwords. Significant cases will also be added to the main cases page. The list does not purport to be comprehensive and focusses on decisions of supreme courts and the federal court, largely omitting decisions of tribunals and commissions relating to contract or consumer law.

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2019 (Contract) (jurisdiction | chronological)

Federal | ACT | NSW | Qld | NT | SA | Tas | Vic | WA

Cases are sorted by jurisdiction in court and within each court appear in reverse chronological order

Australian Capital Territory

Magistrates' Court

External link Da Vesi Construction Group Pty Ltd (ACN 122 278 735) v Rubie De Andrade [2019] ACTMC 1
Magistrate Fryar (24 January 2019)

Catchwords

CONTRACT – Breach of contract – form of contract disputed – dispute in relation to amount paid for services.

PROCESS AND PROCEDURE – Failure to call relevant witnesses.

PLEADINGS – Issues raised at hearing not specifically pleaded.

New South Wales

NSW Supreme Court (Court of Appeal)

External link Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd [2019] NSWSC 73
Harrison AsJ (15 February 2019) (appeal upheld)

Catchwords

APPEAL – Local Court – Local Court Act – Error of law – Failure to give reasons – Contract – Real estate agency agreement –Whether fees agreement varied or terminated agency agreement – Whether repudiation of fees agreement entitled aggrieved party to terminate – Whether aggrieved party entitled to sue for amount owing under original or varied agreement

Notice of contention – Agreement of accord and satisfaction – Whether fees agreement was agreement of accord and conditional satisfaction – Whether fees agreement varied agency agreement such that performance was a condition precedent

External link Sanpoint Pty Ltd v V8 Supercars Holding Pty Ltd [2019] NSWCA 5
Beazley P, Macfarlan JA and Leeming JA (7 February 2019)
Appeal from: V8 Supercars Holdings Pty Ld v Sanpoint Pty Ltd [2017] NSWSC 1043

Catchwords

CONTRACTS — Construction — Interpretation — whether primary judged erred in construction of commercial contract — whether respondent undertaking contractually required tender process was required to disclose status of ongoing negotiations with a third party to appellant — standard of disclosure and relevant time of disclosure required by contract

CONTRACTS — Breach of contract — Standards of contractual duty — whether primary judge erred in finding no breach of commercial contract by respondent — whether contract correctly construed required respondent to disclose to appellant status of third party negotiations during due diligence period — whether respondent breached contractual requirement to disclose

CONTRACTS — Remedies — Damages — Loss of chance — whether respondent’s failure to disclose to appellant an offer made by third party caused the appellant to lose a chance to sell its rights under a contract at a substantially higher price

CORPORATIONS — Directors and officers — Disclosure requirements — where there are common directors of two companies – whether knowledge acquired by one director in course of acting for one company will be imputed to the second company

External link Kai Ling (Australia) Pty Ltd v Rosengreen [2019] NSWCA 3
Basten JA, Sackville AJA, Barrett AJA (5 February 2019)

Catchwords

CONTRACTS – formation – novation – requirements for effective novation of contract by substitution of party – whether option to purchase land novated in favour of substituted grantee

NSW Supreme Court

External link Edgewater Homes Pty Ltd v Donohoe [2019] NSWSC 44
Justice Stevenson (6 February 2019)

Catchwords

EQUITY – fiduciary duty – release by beneficiary of parties who allegedly knowingly received fruits of breach of fiduciary duty and who allegedly were knowingly involved in the breach – whether defaulting fiduciary also released

CONTRACT – inducing breach of contract – whether release of parties who allegedly induced breach of contract also released party allegedly in breach of contract

NSW District Court

External link ABL Nominees Pty Limited (ACN 106 756 521), ABL Custodian Service Pty Ltd (ACN 097899720) and Bendigo and Adelaide Bank Ltd (ACN 068 049 178) v Vijayalatshimi Govindasamy [2019] NSWDC 5
Hatzistergos DCJ (24 January 2019)

Catchwords

CONTRACTS – Construction and Interpretation - Proper construction of term for finance – whether power of attorney clause allowed for a change of lender – whether loan had been validly assigned

Queensland

Qld Supreme Court (Court of Appeal)

External link Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Limited; Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd [2019] QCA 12
Sofronoff P and Fraser and Morrison JJA (6 February 2019)
Appeal from Supreme Court (Justice Flanagan) [2017] QSC 85

Catchwords

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – where Wiggins Island Coal Export Terminal Pty Ltd (WICET) is the corporate vehicle for a joint venture to develop and operate a coal export terminal – where Civil Mining & Construction Pty Ltd (CMC) was contracted by WICET to complete some of the earthworks and civil works required for the construction of the terminal – where WICET caused CMC to be delayed by 208 days in completing the work under the contract, for which CMC was entitled to an extension of time to the date for practical completion – where in a section of the contract dealing with variations the contract contained a table headed “Schedule of Daywork Indirect Personnel and Facilities Rates” (DIPFR) – where the central question on CMC’s appeal is whether the DIPFR schedule contains rates such that it can be said to be one where the Contract “prescribes specific rates … to be applied in determining the value” of the CMC’s on-Site overhead costs for the 208 days of delay caused by WICET – whether on a proper construction of the contract the DIPFR schedule is not one that is prescribed under the relevant clause of the contract

PROCEDURE ...

External link Jawhite Pty Ltd & Anor v Trabme Pty Ltd & Ors [2019] QCA 7
Sofronoff P, Morrison and McMurdo JJA (1 February 2019) (appeal allowed)
Appeal from Supreme Court (Justice Boddice) [2018] QSC 174

Catchwords

COURTS AND JUDGES – CONTEMPT – ...

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where the appellants, and the fourth and fifth respondents were parties to a contract that required a loan money to the company upon demand – where the primary judge found demand was properly given – where the appellants and the fourth and fifth respondents were contractually obliged to provide the loan demanded – where the fourth and fifth respondents provided loan – where the primary judge ordered the appellants to pay the second respondent a pro rata sum – where the appellants failure to provide the loan did not cause the company any loss – whether a contract to lend money can be specifically enforced – whether the court can order damages for breach of a contract to lend money

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where the appellants and the fourth and fifth respondents were parties to a contract that provided an obligation to give security to the third party lenders for the benefit of the company – where the appellants failed to perform their contractual obligation to provide security to the third party lender – where no demand was made on the appellants by third party lender – where the fourth and fifth respondents, as parties to the contract, seek to compel the appellants to perform the contractual obligation to provide security – where no loss was suffered as a result of the breach – whether the contractual obligation to provide security can be specifically enforced – whether damages can be awarded for breach

APPEAL AND NEW TRIAL – PROCEDURE ...

South Australia

SA Supreme Court

External link Knight Frank Australia Pty Ltd v Australian Central Credit Union
Justice Stanley (7 February 2019)

Catchwords

APPEAL AND NEW TRIAL - appeal - general principles - interference with Judge's findings of fact - functions of appellate court - where inferences of fact involved

LANDLORD AND TENANT - termination of the tenancy - surrender

CONTRACTS - general contractual principles - construction and interpretation of contracts

EQUITY - equitable remedies

SA District Court

External link George Street Steel Pty Ltd v Wilson Pastoral International Pty Ltd & Ors
Judge McIntyre (8 February 2019)

Catchwords

CONTRACTS - building, engineering and related contracts - remuneration - recovery on quantum meruit

INDUSTRIAL LAW - South Australia - regulation of particular matters under particular statutes - workmen's liens

PROFESSIONS AND TRADES - engineers - negligence

Victoria

Vic Supreme Court

External link Bruce Thomas Pollard v Catherine Mary Pollard and Registrar of Titles [2019] VSC 21
Daly AsJ (8 February 2019)

REAL PROPERTY – Caveat lodged by the plaintiff’s former wife on the basis of an option to purchase the subject property pursuant to Deed – Whether former wife was offered the option to purchase consistent with the terms of the Deed.

CONTRACTS – Construction – Obligations imposed upon plaintiff in relation to the sale of the property – Whether any offer was made when notice of sale was given – Whether damages are adequate remedy for sale of land – Pianta v National Finance and Trustees Ltd (1994) 180 CLR 146, referred to – Whether lack of mutuality of the parties’ obligations is an obstacle for grant of specific performance – equitable remedies – equity does not relieve parties from the consequences of their bargains.

External link David A Harris v AMP Financial Planning [2019] VSC 24
Justice Digby (4 February 2019)

Catchwords

CONTRACT – Construction and interpretation – Implied terms – Whether contract requires discretion to be exercised in good faith – Whether duty of good faith performance is implied in fact – Whether duty of good faith performance is implied in law – Burden of proof – BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 applied.

CONTRACT – Termination of contract – Termination clause – Where parties agreed to unqualified right of termination with notice – Whether express right to terminate contract is qualified – Whether express right to terminate contract must be exercised in good faith – Whether prohibition against unconscionable conduct qualifies express right to terminate contract.

INJUNCTIONS – Injunction to restrain termination of contract – Whether plaintiffs have a prima facie case – Whether balance of convenience favours granting injunction – Issue of the plaintiffs’ solvency – Whether value of an undertaking for damages is diminished – Where injunctive relief unsuitable because parties will be forced to continue a fraught relationship.

External link George Byron Petselis v Samuel Tatarka [2019] VSC 8
Justice Keogh (23 January 2019)

Catchwords

APPEAL FROM MAGISTRATE — Where barrister retained by solicitor to appear for client – Barrister’s claim for unpaid fee – Whether there was a contract between the client and barrister for payment of fee – Whether the contract was void due to non-compliance with the Legal Profession Uniform Law Application Act 2014 (Vic) sch 1 (Legal Profession Uniform Law) – Legal Profession Uniform Law cls 174, 175, 178, 180, 184, 185 – Dimos v Hanos & Egan[2001] VSC 173 (29 May 2001) – State of Victoria v Subramanian [2008] VSC 9 (5 February 2008).

Vic County Court

External link Manicured Muttz Pty Ltd v Roycar Investments Pty Ltd and Roy Smith [2019] VCC 64
Judge Marks (7 February 2019)

CONTRACT – Purchaser agreed to buy a business on terms contained in a written agreement – Purchaser walked away from the business when money was still owing to the vendor under the agreement – Purchaser offered to vary the agreement on terms such that purchaser would no longer owe any money under the agreement – Whether variation offer was accepted by the conduct of the vendor – whether objective bystander would conclude from vendor’s conduct that it had accepted the variation offer, and conveyed that acceptance to purchaser – Held: Offer not accepted.

MISLEADING AND DECEPTIVE CONDUCT - Whether vendor misrepresented the profitability of the business to the purchaser and this induced the purchaser to buy the business – Held: No.

Western Australia

WA Supreme Court

External link Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2
Justice Vaughan (10 January 2019)

Catchwords

Restitution - Provision of services - Whether agreement between the parties that remuneration payable for services performed

Contract law - Recovery of loan - Terms of repayment - Whether parties agreed repayment terms other than payment on demand

Equity - Breach of fiduciary duty - Whether fiduciary duties were relevantly owed - Whether actions taken constitute a breach of fiduciary duty - Whether loss and damage suffered as a result of breach - Accessorial liability - Whether party liable under first limb of Barnes v Addy as 'knowing recipient'

Corporations law - Breach of fiduciary duty - Director's liability - Whether an order should be made under s 1318 of the Corporations Act 2001 (Cth)

WA Disctrict Court

External link Navabi v Ghasemi [2019] WADC 1
Quail DCJ (17 January 2019)

Catchwords

Contract - Consideration - Misleading or deceptive conduct - Unconscionability - Damages - Plaintiff bought share in company

 

 

2019 (Consumer)

Federal | Vic |

Cases are sorted by jurisdiction in court and within each court appear in reverse chronological order

Federal Court of Australia

Trial division

External link Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106
Justice Murphy (12 February 2019)

Catchwords

CONSUMER LAW – false and misleading representation in contravention of s 12DB(1)(b) of the Australian Securities and Investment Commission Act 2001 (Cth) – where respondent did not adequately inform customers that they were automatically opted in to direct billing for third party content – where some customers unintentionally purchased third party content without knowledge or consent – where Optus applied charges to customer accounts despite awareness of this issue – principles relevant to appropriate penalty – appropriateness of agreed declaration and order for $10 million pecuniary penalty

External link GM Global Technology Operations LLC v S.S.S. Auto Parts Pty Ltd [2019] FCA 97
Justice Burley (11 February 2019)

Catchwords

DESIGNS ...

CONSUMER LAW – misleading or deceptive conduct – whether, in a letter of demand, there is a duty to disclose matters including particulars of the defence afforded by s 72 of the Designs Act 2003 (Cth); that certain designs alleged to have been infringed had not been certified in accordance with s 73 of the Designs Act; that the designs had a maximum term of monopoly; and/or that the impugned parts were not “counterfeit” as alleged

COPYRIGHT ...

External link ACCC v Geowash Pty Ltd (Subject to a Deed of Company Arrangement)
Colvin J (8 February 2019)
View External link ACCC media release (11 February)

Catchwords

CONSUMER LAW - application for orders and pecuniary penalties against a company, its sole director and its 'national franchising manager' - whether company and individuals engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law - consideration of s 29(1)(i) of the Australian Consumer Law - where representations made on company website to prospective franchisees about expected revenue and profit - where representations made on company website that the company has a commercial affiliation with several brands - where representations on website were false - where dealings as to charges to be made to franchisees created the overall impression that franchisor intended to charge in a particular way - where overall impression was false and misleading as to the franchisor's intentions as to the way it would charge - finding that the company did engage in misleading conduct

CONSUMER LAW - whether company engaged in unconscionable conduct in contravention of s 21 of the Australian Consumer Law by its charging practices - where franchisees were charged in staged payments and told these payments would be applied for the set-up and fit-out of their franchise - where the payments were instead applied to meet the expenses of the company generally and pay commissions to staff - where the payments were not applied to the set-up and fit-out of the franchise - finding that the company did engage in unconscionable conduct

CONSUMER LAW - whether company did not act in good faith towards franchisees in contravention of cl 6 of the Franchising Code of Conduct - consideration of the meaning of good faith in the unwritten law - where the company's charging practices did not accord with the terms of the franchise agreements entered into - consideration of significance of facts occurring prior to commencement of operation of cl 6 - finding that the company did not act in good faith

CONSUMER LAW - consideration of accessorial liability of company director and 'national franchising manager' for contraventions by company - whether individuals were knowingly concerned in contraventions - where director and 'national franchising manager' were principal actors and principal financial beneficiaries of the conduct - finding that sole director was knowingly concerned in all contraventions - finding that 'national franchising manager' was knowingly concerned in some contraventions

External link Parker trading as On Grid Off Grid Solar v Switchee Pty Ltd trading as Australian Solar Quotes (No 2) [2019] FCA 79
Gleeson J (8 February 2019)

Catchwords

CONSUMER LAW - damages for contraventions of ss 18, 21 and 29(1)(h) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) - where respondent's contraventions allegedly suppressed success of applicant's solar panel installation business - whether damage proven - quantification of damage to business, through past hypothetical or loss of chance analysis

Legislation (select)

Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 21, 29(1)(h), 236

External link Key Logic Pty Ltd v Blue Groper Investments Pty Ltd [2019] FCA 63
Derrington J (7 Feb 2019)

Catchwords

CONSUMER LAW – misleading and deceptive conduct – form of comparative advertising – misleading statements about competitor’s product – injunctions, declarations and corrective action ordered

COPYRIGHT – unauthorised use of photographs in comparative advertising – photographs given by one respondent to another for such use – personal liability of company directors for breach by company – authorisation of infringement by one respondent of another

Legislation (select)

Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law ss 18, 29(1)(a), 29(1)(g), 232, 247

External link Director of Consumer Affairs Victoria v Wens Bros Trading Pty Ltd [2019] FCA 39
Mortimer J (29 January 2019)

Catchwords

CONSUMER LAW – contraventions of ss 106, 118 and 136 of the Australian Consumer Law – hearing on penalty for breaches of product safety standards, product information standards and prohibition on sale of products subject to permanent ban – adverse publicity orders – pecuniary penalties

External link Australian Competition and Consumer Commission v Ultra Tune Australia Pty Ltd [2019] FCA 12
Bromwich J (18 January 2019)

Catchwords

CONSUMER LAW – whether franchisor contravened disclosure requirements in the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Franchising Code) – whether franchisor contravened cl 6(1) of the Franchising Code, obligation to act in good faith – whether franchisor engaged in misleading or deceptive conduct – whether franchisor made false or misleading representations – whether conduct of the franchisor aberrant – held: contraventions established as alleged – assessment of pecuniary penalties – held: pecuniary penalty of $2,604,000 imposed; ancillary declarations and other relief to be granted in final orders

Victoria (Consumer cases)

Victorian Supreme Court

External link RJB Wolfe Pty Ltd v Mornington Peninsula Eye Clinic Pty Ltd [2019] VSC 29
Justice Sifris (8 February 2019)

Catchwords

TRADE PRACTICES – Misleading or deceptive conduct – Passing off – Use of name ‘Mornington Peninsula Eye Clinic’ – Established business called ‘Peninsula Eye Centre’ – Whether defendants made false representation as to existence of a connection or affiliation with the business of the plaintiff – Where business names use descriptive or functional terms – Plaintiff had not established and maintained distinctive reputation in its business name – Ophthalmologists, optometrists, general practitioners and patients are not likely to be misled into believing that practice of first defendant is associated with that of the plaintiff – Competition and Consumer Act 2010 (Cth) Sch 2 s 18.

Vic County Court

External link Manicured Muttz Pty Ltd v Roycar Investments Pty Ltd and Roy Smith [2019] VCC 64
Judge Marks (7 February 2019)

Catchwords

CONTRACT – Purchaser agreed to buy a business on terms contained in a written agreement – Purchaser walked away from the business when money was still owing to the vendor under the agreement – Purchaser offered to vary the agreement on terms such that purchaser would no longer owe any money under the agreement – Whether variation offer was accepted by the conduct of the vendor – whether objective bystander would conclude from vendor’s conduct that it had accepted the variation offer, and conveyed that acceptance to purchaser – Held: Offer not accepted.

MISLEADING AND DECEPTIVE CONDUCT - Whether vendor misrepresented the profitability of the business to the purchaser and this induced the purchaser to buy the business – Held: No.

Victorian Civil and Administrative Tribunal (VCAT)

External link Sutcliffe v Stenholm Holdings Pty Ltd (Civil Claims) [2019] VCAT 141
D Buljan, Member (1 February 2019)

Catchwords

Contract for the provision of motor vehicle storage facilities - claimed breaches of terms of contract regarding agreed monthly storage fees and location of motor vehicles - claimed breaches of consumer guarantees due to damaged paintwork and missing car parts - whether oral agreement constitutes standard form contract under unfair contract provisions - Australian Consumer Law sections 23, 24, 25, 26, 27, 59 and 60 - counterclaim for unpaid storage fees - disposal of uncollected goods - whether service provider entitled to dispose of uncollected motor vehicle - Part 4.2 Australian Consumer Law and Fair Trading Act 2012 (Vic).

External link Ellard v Wynstan Designs Pty Ltd (Civil Claims) [2019] VCAT 47
Deputy President I Lulham (11 January 2019)

Catchwords

Purchase of awnings for a domestic dwelling – preliminary question of whether the Respondent supplier engaged in misleading and deceptive conduct in representing the goods that it was offering to supply – section 18 of the Australian Consumer Law – analysis of the evidence – no misleading conduct – further hearing to be scheduled on other issues