Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Dib Group Pty Ltd v Ventouris Enterprises Pty Ltd [2011] NSWCA 300 Hearing dates: 14 July 2011 Decision date: 21 September 2011 Before: Allsop P at 1
Macfarlan JA at 65
Handley AJA at 66Decision: 1.The question of the correctness of Sykes v Reserve Bank of Australia (1998) 88 FCR 511; City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94; and Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 not being necessary to resolve for the resolution of the appeal, leave to argue that they should not be followed is refused.
2.Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TRADE AND COMMERCE - misleading and deceptive conduct - representations as to future matters - Fair Trading Act 1987 (NSW), s 41 and Trade Practices Act 1974 (Cth), s 51A - whether necessary to show existence of reasonable grounds in fact relied upon by representor - not necessary to decide whether Sykes v Reserve Bank of Australia (1998) 88 FCR 511 and City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94 should not be followed.
TRADE AND COMMERCE - misleading and deceptive conduct - representations as to future matters - Fair Trading Act 1987 (NSW), s 41(2) effects a reversal of the legal or persuasive onus of proof.Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Fair Trading Act 1987 (NSW), s 41, 41(2)
Fair Trading Act 1987 (WA), s 9(2)
Trade Practices Act 1974 (Cth), s 51A, 51A(2)Cases Cited: Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259
City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94
Commissioner for Fair Trading, Department of Commerce v Perrett [2007] NSWSC 1130
Computer Accounting & Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Cummings v Lewis (1993) 41 FCR 559
Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58
Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Holz v Lane [2005] WASCA 40
Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136
Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981
Momcilovic v The Queen [2011] HCA 34
Moss v Lowe Hunt and Partners Pty Ltd [2010] FCA 1181
Re McGrath; Pan Pharmaceuticals Ltd (In Liq) v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2; 165 FCR 230
Sykes v Reserve Bank of Australia…
Keep reading for free
Create a free CaseChat account to read Dib Group Pty Ltd v Ventouris Enterprises Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2011] NSWCA 300
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether, in proceedings involving representations as to future matters, it was necessary to demonstrate that the representor had reasonable grounds for making those representations. This question arose in the context of sections 41 of the *Fair Trading Act 1987* (NSW) and section 51A of the *Trade Practices Act 1974* (Cth). The court was also asked to consider whether certain previous decisions, including *Sykes v Reserve Bank of Australia*, *City of Botany Bay Council v Jazabas Pty Ltd*, and *Downey v Carlson Hotels Asia Pacific Pty Ltd*, should not be followed.
The court determined that it was not necessary to resolve the correctness of the cited authorities for the purpose of deciding the appeal. The court reasoned that section 41(2) of the *Fair Trading Act 1987* (NSW) effectively reverses the legal or persuasive onus of proof in relation to representations about future matters. This means that the burden shifts to the representor to establish that they had reasonable grounds for making the representation.
The appeal was dismissed with costs. The court refused leave to argue that the previously mentioned authorities should not be followed, as it was not necessary to do so for the resolution of the appeal.
Orders
Orders of the court
1.The question of the correctness of Sykes v Reserve Bank of Australia (1998) 88 FCR 511; City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94; and Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 not being necessary to resolve for the resolution of the appeal, leave to argue that they should not be followed is refused.
2.Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.