Dib Group Pty Ltd v Ventouris Enterprises Pty Ltd

Dib Group Pty Ltd (the appellant) appealed a decision concerning alleged misleading and deceptive conduct. The dispute involved representations made by the appellant regarding future matters. The appeal was heard by the Court of Appeal of New South Wales.

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.