Fenton v Ozzz Lo Pty Ltd

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DISTRICT COURT OF QUEENSLAND

CITATION:

Fenton & Anor v Ozzz Lo Pty Ltd & Ors [2018] QDC 268

PARTIES:

DONALD FENTON and TAMARA SPEIDEL
(plaintiffs)
v
OZZZ LO PTY LTD ACN 010 480 243
(first defendant)
and
OZZZ LO HEALTHCARE PTY LTD
ACN 108 007 058
(second defendant)
and
ROBERT ARTHUR BOOL
(third defendant)
and
JOYCE MARY BOOL
(fourth defendant)

FILE NO/S:

D 168 of 2013

DIVISION:

Civil 

PROCEEDING:

Claim
ORIGINATING COURT: Maroochydore District Court

DELIVERED ON:

20 December 2018

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

29–31 May 2017, 18 August 2017, 15 September 2017

JUDGE:

Long SC DCJ

ORDER:

Judgment for the plaintiffs in the amount of $89,451.60, including $27,760.84 in interest:

Against the first and second defendants, for contravention of s 52 of the Trade Practices Act 1974 (Cth); and

Against the third defendant, pursuant to s 75B(1)(c) of the Trade Practices Act 1974 (Cth), for being knowingly concerned in that contravention.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION –MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the plaintiffs purchased a business in manufacturing a product being reusable hot/cold gel packs from the first and second corporate defendants – where the third and fourth defendants were directors of those corporations – where representations were made to the plaintiffs as to the non-toxicity of the product and the contents of it – where the product contained a substance that was particularly toxic – where it is alleged the defendants had knowledge of the facts establishing toxicity – where the plaintiffs relied on the representations – where it is alleged the representations were misleading and deceptive and therefore contravened s 52 of the Trade Practices Act 1974 – where it is alternatively alleged the representations were negligent misrepresentations – whether the representations were misleading and deceptive – whether the third and fourth defendants have accessorial liability pursuant to s 75B of the Trade Practices Act 1974 – whether and to what extent damage or loss has been caused by any contravention – whether it is appropriate to reduce any such recovery pursuant to s 82(1B) of the Trade Practices Act 1974

LEGISLATION: 

Civil Proceedings Act 2011 s 58
Competition and Consumer Act 2010 s 137B
Trade Practices Act 1974 (Cth) ss 52, 75B, 82(1), 82(1B), 87
Uniform Civil Procedure Rules s 150

CASES:

Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112
Australian Competition and Consumer Commission v Danoz Direct Pty Ltd [2003] FCA 881
Australian Securities and Investments Commission v ActivSuper Pty Ltd (in liq) & Ors (2015) 235 FCR 181
Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 at 625
Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd [2005] FCAFC 271
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Carlton v Pix Print Pty Ltd [2000] FCA 337
Citrus Queensland Pty v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364
Cut Price Deli Pty…

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Details
Case
[2018] QDC 268
Decision Date

CaseChat Overview and Summary

The plaintiffs, who had purchased a business involved in manufacturing reusable hot/cold gel packs, brought an action against the first and second corporate defendants, who were the sellers of the business, and the third and fourth defendants, who were directors of the corporate defendants. The plaintiffs sought damages for misleading and deceptive conduct under section 52 of the Trade Practices Act 1974, as well as for negligent misrepresentation. The plaintiffs alleged that the defendants made representations about the non-toxicity of the product and its contents, which were misleading and deceptive, and that the product contained a particularly toxic substance. The plaintiffs further alleged that the third and fourth defendants had knowledge of the toxicity and that the third defendant had accessorial liability under section 75B of the Act.

The court had to determine whether the representations made by the defendants were misleading and deceptive, as well as whether the third defendant had accessorial liability. The court also had to consider whether and to what extent the plaintiffs had suffered damage or loss due to the contravention, and whether the recovery should be reduced under section 82(1B) of the Trade Practices Act 1974. The court found that the representations were indeed misleading and deceptive and that the third defendant had accessorial liability. The court also found that the plaintiffs had suffered loss and awarded damages of $89,451.60, including interest of $27,760.84.

The court held that the first and second defendants were liable for contravening section 52 of the Trade Practices Act 1974, and that the third defendant was liable for being knowingly concerned in that contravention under section 75B(1)(c) of the Act. The court ordered that the first and second defendants pay damages to the plaintiffs in the amount of $89,451.60, including interest of $27,760.84, and that the third defendant also pay damages to the plaintiffs in the same amount. The fourth defendant was found not liable.

Orders

Orders of the court

Judgment for the plaintiffs in the amount of $89,451.60, including $27,760.84 in interest:

Against the first and second defendants, for contravention of s 52 of the Trade Practices Act 1974 (Cth); and

Against the third defendant, pursuant to s 75B(1)(c) of the Trade Practices Act 1974 (Cth), for being knowingly concerned in that contravention.

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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