Care A2 Plus Pty Ltd v Pichardo

Case [2024] NSWCA 35


Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35
Hearing dates: 4-5 December 2023
Date of orders: 22 February 2024
Decision date: 22 February 2024
Before: Bell CJ at [1];
Stern JA at [203];
Basten AJA at [204]
Decision:

1.      Appeal allowed in part with respect to the First Respondent, Karla Patricia Pichardo.

2.      Set aside orders 9 and 10 entered on 14 February 2023 so far as they refer to the First Respondent.

3. In lieu thereof, order that the First Respondent pay the Appellants amounts totalling $1,090,000 together with interest from the date of payments by the Appellants to DCA Sydney Enterprises Pty Ltd calculated in accordance with the rates provided under s 100 of the Civil Procedure Act 2005 (NSW).

4.      Order that the First Respondent pay the Appellants an amount of $30,000 by way of exemplary damages.

5.      Order that the First Respondent be jointly liable with the Second Respondent in respect of the Appellants’ costs of the cross-claim before the primary judge.

6.      Order that the First Respondent pay the Appellants’ costs of the appeal.

Catchwords:

CONSUMER LAW — misleading and deceptive conduct — whether Chief Financial Officer of small proprietary company was a mere conduit of misrepresentations — causation

CONSUMER LAW — misleading and deceptive conduct — knowing involvement — requisite degree of knowledge

TORTS — deceit — exemplary damages

Legislation Cited:

Competition and Consumer Act 2010 (Cth) sch 2 – Australian Consumer Law ss 2, 18, 236

Civil Procedure Act 2005 (NSW) s 100

Evidence Act 1995 (NSW) s 140

Trade Practices Act 1974 (Cth) s 52

Cases Cited:

Anchorage Capital Master Offshore Ltd v Sparkes (2023) 111 NSWLR 304; [2023] NSWCA 88

Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) [2014] FCA 340; (2014) 98 ACSR 347

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54

Australian Securities and Investments Commission v Narain (2008) 169 FCR 211; [2008] FCAFC 120

Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200

Benlist Pty Ltd v Olivetti Australia Pty Ltd (1990) ATPR 41-043

Borzi Smythe Pty Ltd v Campbell Holdings (NSW) Pty Ltd [2008] NSWCA 233

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37

Crouch v Bloody Mary Group Pty Ltd [2020] SASC 68

Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (No 2) [2009] FCA 1153; (2009) 74 ACSR 373

Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; [1993] ATPR 41-203

Demetrios v Gikas Dry Cleaning Industries Pty Ltd (1991) 22 NSWLR 561

Fabcot Pty Ltd v Port…

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AGLC
Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35
Case
[2024] NSWCA 35
Decision Date

CaseChat Overview and Summary

Care A2 Plus Pty Ltd and another party (the Appellants) appealed to the Court of Appeal of New South Wales against orders made by the primary judge concerning claims of misleading and deceptive conduct and deceit against Karla Patricia Pichardo (the First Respondent) and another party. The dispute arose from alleged misrepresentations made in connection with a business transaction.

The Court of Appeal was required to determine whether the First Respondent, as Chief Financial Officer of a company, was merely a conduit for misrepresentations made to the Appellants, and whether her conduct caused loss to the Appellants. Further, the Court considered the requisite degree of knowledge for establishing knowing involvement in misleading and deceptive conduct, and the availability of exemplary damages for deceit.

The Court found that the First Respondent was not merely a conduit and that her actions had caused loss to the Appellants. It applied principles of Australian Consumer Law regarding misleading and deceptive conduct, and tort law concerning deceit. The Court determined that the First Respondent possessed the necessary knowledge for liability and that exemplary damages were warranted.

The appeal was allowed in part. The Court set aside certain orders of the primary judge and ordered that the First Respondent pay the Appellants a total of $1,090,000 plus interest, and $30,000 by way of exemplary damages. The First Respondent was also ordered to be jointly liable with the second respondent for the Appellants’ costs of the cross-claim and to pay the Appellants’ costs of the appeal.

Orders

Orders of the court

1. Appeal allowed in part with respect to the First Respondent, Karla Patricia Pichardo.

2. Set aside orders 9 and 10 entered on 14 February 2023 so far as they refer to the First Respondent.

3. In lieu thereof, order that the First Respondent pay the Appellants amounts totalling $1,090,000 together with interest from the date of payments by the Appellants to DCA Sydney Enterprises Pty Ltd calculated in accordance with the rates provided under s 100 of the Civil Procedure Act 2005 (NSW).

4. Order that the First Respondent pay the Appellants an amount of $30,000 by way of exemplary damages.

5. Order that the First Respondent be jointly liable with the Second Respondent in respect of the Appellants’ costs of the cross-claim before the primary judge.

6. Order that the First Respondent pay the Appellants’ costs of the appeal.

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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