Ahern v Associated Products Pty Ltd

[2017] NSWDC 185

District Court

New South Wales

Medium Neutral Citation:

Ahern v Associated Products Pty Ltd & Anor [2017] NSWDC 185

Hearing dates:

22 – 24 March 2017, 27 – 30 March 2017

Date of orders:

30 March 2017

Decision date:

30 March 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Verdict and judgment for the plaintiff against the first defendant for $122,000.

 

Verdict and judgment for the second defendant against the plaintiff.

 Order the first defendant to pay 90% of the plaintiff's costs on the ordinary basis until 27 February 2017 and 90% of the plaintiff's costs on an indemnity basis from 28 February 2017.

Catchwords:

CONTRACT – CONSUMER PROTECTION

 

TORTS – DECEIT

  Sale of distributorship of confectionery products over a territory for 2 years – Whether misleading or deceptive conduct by vendor – Whether vendor guilty of tort of deceit – Whether director of defendant company had accessorial liability

Legislation Cited:

Competition and Consumer Act 2010 (Cth)
Trade Practices Act 1974 (Cth)

Cases Cited:

Edgington v Fitzmaurice (1885) 29 Ch D 459
Helton v Allen (1940) 63 CLR 691
Keller v LED Technologies Pty Ltd [2010] FCFCA 55
King v GIO Australia Holdings Ltd [2001] FCA 238
Krakowski v Eurolynx Pty Ltd (1995) 183 CLR 563
Watson v Foxman (1995) 49 NSWLR 315

Category:

Principal judgment

Parties:

Bronwyn Louise Ahern (Plaintiff)
Associated Products Pty Ltd (First Defendant)
Paul Sengos (Second Defendant)

Representation:

Counsel:
Mr M Klooster (Plaintiff)
Mr J Hassett (Defendant)

  Solicitors:
Macedone Legal (Plaintiff)
Hassett Lee & Co Lawyers (Defendant)

File Number(s):

2015/334944

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff, Mrs Bronwyn Louise Ahern, brings an action for damages. She relies upon the statutory cause of action contained in s 18 of the Australian Consumer Law, which is comprised in Sch 2 of the Competition and Consumer Act 2010 (Cth). She also relies upon the common law tort of deceit. The causes of action are alleged to arise from the circumstances in which the plaintiff entered into a distribution agreement with the first defendant company, of which the second defendant, Mr Paul Sengos, is the director, secretary and shareholder. The plaintiff signed the written agreement on 23 December 2014 and sent it via email to the defendants. The pleadings indicate some disagreement as to the effective date of the agreement but nothing hangs on whether it was 23 December 2014 or 13 January 2015, as pleaded in par 2 of the defence. It is common ground that on 13 January 2015 the plaintiff first engaged in work which she was entitled to perform under the distribution agreement. There is no suggestion that at any time did the defendants provide to the plaintiff a signed counter copy of the distribution agreement.

2. Shortly stated, the plaintiff agreed to buy confectionery from the first defendant and to distribute it to retailers in a specified geographical area. The retailers would, through their outlets, sell the confectionery to members of the public, the ultimate consumers. Neither of the defendants manufactured confectionery. All the confectionery…