Dwyer v Craft Printing Pty Ltd - [2009] NSWCA 405

Appeal Outcome: Special leave refused with costs by the High Court, 30 July 2010

New South Wales

Court of Appeal

CITATION: Dwyer v Craft Printing Pty Ltd [2009] NSWCA 405

HEARING DATE(S): 16 September 2009

JUDGMENT DATE:
15 December 2009

JUDGMENT OF: Campbell JA at [1]; Macfarlan JA at [3]; Young JA at [11]

DECISION: Appeal dismisssed with costs.

CATCHWORDS: TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and Fair Trading Act 1987- misleading and deceptive conduct- sole director guaranteed debts of corporation- corporation ceased to be contracting party with respondent, different corporation in group of companies continued to receive services from respondent- whether inaction by director in permitting this state of affairs a "refusal to act"- if so whether "inadvertent"- held this was positive conduct in continuing trading relationship with the respondent in same circumstances as previous arrangement without disclosing change to the structure of the companies receiving the services- director liable.

LEGISLATION CITED: Australian Securities and Investments Commission Act 2001 (Cth), s 12BA(2)
Fair Trading Act 1987, s 4
Trade Practices Act 1974 (Cth), s 51AC

CATEGORY: Principal judgment

CASES CITED: Airservices Australia v Ferrier [1996] HCA 54; 185 CLR 483
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714
Deeley v Lloyds Bank Ltd [1912] AC 756
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Dillon v Parker (1818) 1 Swans 359; 36 ER 422
Dowling v Bowie [1952] HCA 63; 86 CLR 136
In re Montagu's Settlement Trusts [1987] 1 Ch 284
Kuru v State of NSW [2008] HCA 26; 236 CLR 1
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458
Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211
Semrani v Manoun; Williams v Manoun [2001] NSWCA 337
Simson v Ingham (1823) B & C 65; 107 ER 307
Vines v Djordjevitch [1955] HCA 19; 91 CLR 512

PARTIES: Paul Andrew Dwyer (Appellant)
Craft Printing Pty Ltd (Respondent)

FILE NUMBER(S): CA 40207/09

COUNSEL: B A Coles QC and I Archibald (Appellant)
P Greenwood SC and G George (Respondent)

SOLICITORS: W Lawyers (Appellant)
David R Purvis & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1997/08

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 7 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Craft Printing Pty Limited v Dwyer [2009] NSWDC 190

CA 40207/09

CAMPBELL JA
MACFARLAN JA
YOUNG JA

Tuesday 15 December 2009

Judgment

1 CAMPBELL JA: I have had the advantage of reading the reasons of Macfarlan JA and Young JA. I agree with the order proposed by Young JA, and with the reasons given by Macfarlan JA for upholding the primary judge’s finding of misleading and deceptive conduct.

2 Having considered…

Grounds of appeal

[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.

Keep reading for free

Create a free CaseChat account to read Dwyer v Craft Printing 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 405
Decision Date: 15 December 2009

CaseChat Overview and Summary

Dwyer v Craft Printing Pty Ltd concerned an appeal to the New South Wales Court of Appeal regarding alleged misleading and deceptive conduct. The appellant, Mr. Dwyer, a sole director of a company, had guaranteed the debts of that company. Subsequently, the company ceased to be the contracting party receiving services from the respondent, Craft Printing Pty Ltd, with a different company within the same group continuing to receive those services. The core of the dispute revolved around Mr. Dwyer's conduct in relation to this change in the contracting entity.

The Court of Appeal was required to determine whether Mr. Dwyer's inaction in permitting the continuation of the trading relationship under the new corporate structure, without disclosing the change to the respondent, constituted a "refusal to act" within the meaning of the relevant legislation. Furthermore, the court had to consider whether any such refusal to act was "inadvertent." The ultimate question was whether Mr. Dwyer was liable for misleading and deceptive conduct.

The Court reasoned that Mr. Dwyer's conduct was not a mere omission or inadvertence but rather positive conduct. By allowing the trading relationship to continue under the same circumstances as the previous arrangement, without informing the respondent of the shift in the corporate entity receiving the services, Mr. Dwyer engaged in conduct that was misleading and deceptive. The court applied principles of Australian consumer law, finding that the failure to disclose the material change in the contracting party created a false impression for the respondent. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismisssed with costs.

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.

CITATION:	Dwyer v Craft Printing Pty Ltd [2009] NSWCA 405
HEARING DATE(S):	16 September 2009
JUDGMENT DATE:	15 December 2009
JUDGMENT OF:	Campbell JA at [1]; Macfarlan JA at [3]; Young JA at [11]
DECISION:	Appeal dismisssed with costs.
CATCHWORDS:	TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and Fair Trading Act 1987- misleading and deceptive conduct- sole director guaranteed debts of corporation- corporation ceased to be contracting party with respondent, different corporation in group of companies continued to receive services from respondent- whether inaction by director in permitting this state of affairs a "refusal to act"- if so whether "inadvertent"- held this was positive conduct in continuing trading relationship with the respondent in same circumstances as previous arrangement without disclosing change to the structure of the companies receiving the services- director liable.
LEGISLATION CITED:	Australian Securities and Investments Commission Act 2001 (Cth), s 12BA(2) Fair Trading Act 1987, s 4 Trade Practices Act 1974 (Cth), s 51AC
CATEGORY:	Principal judgment
CASES CITED:	Airservices Australia v Ferrier [1996] HCA 54; 185 CLR 483 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Costa Vraca Pty Ltd v Berrigan Weed & Pest Control Pty Ltd (1998) 155 ALR 714 Deeley v Lloyds Bank Ltd [1912] AC 756 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Dillon v Parker (1818) 1 Swans 359; 36 ER 422 Dowling v Bowie [1952] HCA 63; 86 CLR 136 In re Montagu's Settlement Trusts [1987] 1 Ch 284 Kuru v State of NSW [2008] HCA 26; 236 CLR 1 Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211 Semrani v Manoun; Williams v Manoun [2001] NSWCA 337 Simson v Ingham (1823) B & C 65; 107 ER 307 Vines v Djordjevitch [1955] HCA 19; 91 CLR 512
PARTIES:	Paul Andrew Dwyer (Appellant) Craft Printing Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40207/09
COUNSEL:	B A Coles QC and I Archibald (Appellant) P Greenwood SC and G George (Respondent)
SOLICITORS:	W Lawyers (Appellant) David R Purvis & Co (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1997/08
LOWER COURT JUDICIAL OFFICER:	Johnstone DCJ
LOWER COURT DATE OF DECISION:	7 April 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Craft Printing Pty Limited v Dwyer [2009] NSWDC 190