Findex Group Ltd v iiNet Ltd - [2020] NSWSC 347

Supreme Court

New South Wales

Medium Neutral Citation: Findex Group Ltd v iiNet Ltd [2020] NSWSC 347
Hearing dates: 1 April 2020
Date of orders: 01 April 2020
Decision date: 01 April 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order that proceeding 2016/271090 in this court be transferred to the Supreme Court of the Australian Capital Territory pursuant to section 5(2) and section 5(6) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
2. Order that the costs that were reserved by order 5 of the orders made on 19 October 2018 (see Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567) be borne as follows: that the plaintiffs pay the costs of that part of the amended notice of motion (filed 4 July 2018) which was heard in September 2018 and determined in October 2018.
3. Note, for the avoidance of doubt, that order 6 made on 11 September 2019 (see Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198) did not (and was not intended to) incorporate costs in respect of that portion of the amended notice of motion, filed 4 July 2018, that was dealt with in Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567.
4. Otherwise make no further orders in relation to the costs of the proceeding as a whole, on the basis that those costs are to be dealt with by the Supreme Court of the ACT when the matter is transferred to that Court.

Catchwords:
CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule
Legislation Cited: Australian Consumer Law s 18
Civil Procedure Act 2005 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 5(2)
Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited: Bankinvest AG V Seabrook (1988) 14 NSWLR 711
Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Newmont Yandal Operations Pty Limited v The J Aron Corporation & The Goldman Sachs Group Inc [2007] NSWCA 195
Texts Cited: Conflicts of Laws in Australia (10th edn), Davies and Nygh
Category: Costs
Parties: Findex Group Ltd (First Plaintiff)
Spiro Paule (Second Plaintiff)
Danielle Ludbey (Third Plaintiff)
Phillip Hart (Fourth Plaintiff)
iiNet Ltd (First Defendant)
iiNet (Ozemail) Pty Ltd (Second Defendant)
LinkedIn Australia Pty Ltd (Third Defendant)
David Keith McKay (Fourth Defendant)
Representation:
Counsel:
M A Friedgut (Plaintiffs)
P Dunning SC with M Karam (Fourth Defendant)
Solicitors:
Harmers Workplace Lawyers (Plaintiffs)
Just Dispute Resolution (Fourth Defendant)

File Number(s): 2016/00271090
Publication restriction: Nil

Judgment

HER HONOUR: This matter has come before me on an amended notice of motion filed by the fourth defendant on 31 March 2020 seeking, amongst other things, for the proceeding to be cross-vested to the Supreme Court of the Australian Capital Territory pursuant to s 5(2) and/or s 5(6) of the Jurisdiction of…

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.

Continue reading Findex Group Ltd v iiNet Ltd

Details

AGLC: Findex Group Ltd v iiNet Ltd [2020] NSWSC 347
Case: [2020] NSWSC 347
Decision Date: 01 April 2020

CaseChat Overview and Summary

Findex Group Ltd, a company involved in the sale of insurance products, commenced proceedings against iiNet Ltd, a company that provides internet services, in the Supreme Court of Queensland. Findex alleged that iiNet had committed misleading and deceptive conduct, contravened the Australian Consumer Law, and made false and misleading representations, seeking damages and injunctive relief. The dispute centred on a marketing campaign conducted by iiNet, which Findex claimed was misleading to consumers. iiNet denied the allegations and counterclaimed for defamation and misuse of confidential information.

The central legal issues the court needed to address involved the interpretation of statutory provisions under the Australian Consumer Law and the applicability of the slip rule in relation to the correction of errors in the pleadings. The court had to determine whether iiNet's marketing campaign breached the statutory provisions and whether Findex's claims were substantiated. Additionally, the court needed to consider the procedural aspect of allowing an amendment to the pleadings under the slip rule to correct an error that did not alter the cause of action.

In its judgment, the court found that iiNet's marketing campaign did not contravene the Australian Consumer Law as alleged by Findex. The court held that the representations made by iiNet were not misleading or deceptive within the meaning of the legislation. Furthermore, the court found that Findex's claims were not substantiated by the evidence presented. On the procedural issue, the court held that an amendment to correct a typographical error in the pleadings was permissible under the slip rule, as it did not alter the cause of action or prejudice iiNet. Consequently, the court allowed the amendment and dismissed Findex's claims with costs.

Orders