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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Care A2 Plus Pty Ltd v Pichardo
Sign in free to access the full text
Details
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.