Aardwolf Industries LLC v Tayeh

The applicants, Aardwolf Industries LLC and others, sought to appeal a decision of the primary judge concerning claims of negligence and breaches of consumer law against Mr Tayeh, a liquidator. The dispute arose from the assignment of property by the liquidator, which the applicants alleged caused them economic loss. The applicants had sought leave to commence proceedings against the liquidator, which was refused by the primary judge.

The Court of Appeal was required to determine whether the primary judge erred in refusing leave to commence proceedings against the liquidator, considering the applicants' claims of negligence and misleading or deceptive conduct. Specifically, the court considered whether vulnerability was a necessary element for establishing a duty of care in negligence in this context, and whether the liquidator's conduct in assigning the property was "in trade or commerce" for the purposes of consumer law. The court also examined whether the applicants had relied on the accuracy of recitals within a deed and whether their delay in seeking leave was relevant.

The Court of Appeal found that the applicants had not established the necessary vulnerability to support a claim in negligence, as they possessed the ability to protect themselves from the consequences of the liquidator's actions. Regarding the consumer law claims, the court inferred from the evidence that the applicants were aware of the true position and therefore did not rely on the accuracy of the recitals. While acknowledging that the assignment of property by a liquidator could, in certain circumstances, have a trading or commercial character, the court ultimately dismissed the appeal, noting the significant and inadequately explained delay in the applicants' pursuit of their claims.

Consequently, the Court of Appeal granted leave to appeal but dismissed the appeal itself, ordering the applicants to pay the costs.