FEDERAL COURT OF AUSTRALIA
All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588
File number: VID 977 of 2016 Judge: STEWARD J Date of judgment: 30 April 2019 Catchwords: PRACTICE AND PROCEDURE – application for leave for a non-practitioner to appear on behalf of a company – where applicant was the sole director of the company – where applicant admitted that the case was too complex for him to give meaningful assistance to the Court
CONSUMER LAW – misleading or deceptive conduct –alleged contraventions of s 18 of the Australian Consumer Law – where representations made about the past sales figures and profitability of a business – where past sales figures and profitability of a business were inflated – where representations made about the future sales figures and profitability of a business – where no reasonable grounds for making the representations with respect to future sales figures and profitability of a business
DAMAGES – where misrepresentations induced acquisition of a business – where business was not subsequently saleable – where trading losses subsequently incurred
Legislation: Competition and Consumer Act 2010 (Cth) s 139B, Sch 2, Australian Consumer Law ss 2, 4, 18, 236
Corporations Act 2001 (Cth) s 1041H
Evidence Act 1995 (Cth) s 135
Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) rr 1.34, 4.01
Income Tax Assessment Act 1997 (Cth) s 40-340
Trade Practices Act 1974 (Cth) ss 52, 82
Cases cited: Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640
Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276
Australian Securities and Investments Commission v Narain (2008) 169 FCR 211
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Casuarina Pty Ltdv Federal Commissioner of Taxation (1970) 1 ATR 755
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Gould v Vaggelas (1985) 157 CLR 215
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546
Henville v Walker (2001) 206 CLR 459
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640
Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281
Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525
Potts v Miller (1940) 64 CLR 282
Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1
Re Montecatini’s Patent (1973) 47 ALJR 161
Silkearl Pty Ltd v Ainsworth Game Technology Ltd [2006] FCA 949
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Ting v Blanche (1993) 118 ALR 543
Vieira v O’Shea [2012] NSWCA 21
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Date of hearing: 3-7, 24 September 2018 Registry: Victoria Division:
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- Case
- [2019] FCA 588
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the applicant, who was the sole director of All Options Pty Ltd, was entitled to appear on behalf of the company in the proceedings, and whether the alleged conduct constituted misleading or deceptive conduct under section 18 of the Australian Consumer Law. The court also needed to determine the appropriate remedy for the misrepresentations, including any damages that might be awarded for the losses incurred due to the acquisition of the non-viable business.
The court found that the applicant, while the sole director, did not possess the requisite legal qualifications to appear on behalf of the company. It was acknowledged that the case was too complex for him to provide meaningful assistance to the court. Consequently, the court denied the application for the non-practitioner to appear. Regarding the substantive claims, the court found that the representations about the past and future sales figures and profitability of the business were misleading and deceptive. The court concluded that the misrepresentations induced the acquisition of the business and that All Options Pty Ltd was entitled to damages for the trading losses incurred. The court ordered the parties to file consent orders reflecting the judgment within 14 days or, in the event of disagreement, to submit concise written arguments limited to five pages each on the form of final relief.
Orders
Orders of the court
1. The parties are to file within 14 days hereof consent orders giving effect to the reasons of this judgment, or if the parties cannot so agree, submissions limited to 5 pages setting out what each party contends should be the form of final relief.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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