Fitzgerald v Deloitte Services Pty Ltd

[2017] NSWCA 139

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139

Hearing dates:

29 May 2017

Date of orders:

21 June 2017

Decision date:

21 June 2017

Before:

Bathurst CJ at [1];
Payne JA at [2];
Emmett AJA at [3]

Decision:

(1) The notice of appeal dated 13 December 2016 be dismissed.
(2) The appellant pay the respondent’s costs of the appeal.

Catchwords:

TRADE PRACTICES – misleading or deceptive conduct – s 18 of the Australian Consumer Law - whether the respondent relied on representations made by the appellant – whether it is necessary to establish reliance on representations – whether the appellant was ‘involved’ in contraventions of s 18 for the purposes of s 2 of the Australian Consumer Law – whether the appellant was liable for contraventions pursuant to s 236 of the Australian Consumer Law

 

CONTRACT – whether the primary judge erred in determining that a payment practice had been established – whether the primary judge misconstrued the terms and scope of the payment practice

  APPEAL AND NEW TRIAL – no issue of principle – failure to demonstrate that the primary judge’s findings were glaringly improbable or inconsistent with accepted evidence or with evidence overlooked by the primary judge

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100
Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law, ss 2, 18, 236

Cases Cited:

Deloitte Services Pty Ltd v HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) [2016] NSWSC 1597
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Kevin Michael Fitzgerald (Appellant)
Deloitte Services Pty Ltd (Respondent)

Representation:

Counsel:
K Fitzgerald (Appellant in person)
D R Stack (Respondent)

    Solicitors:
Bridges Lawyers (Respondent)

File Number(s):

2016/373439

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2016] NSWSC 1597

Date of Decision:

15 November 2016

Before:

McDougall J

File Number(s):

2014/131496

Judgment

1. BATHURST CJ: I have had the advantage of reading the judgment of Acting Justice Emmett in draft. For the reasons given by his Honour, I agree the appeal should be dismissed with costs.

2. PAYNE JA: I agree with Emmett AJA.

3. EMMETT AJA: The question in this appeal is whether the appellant, Mr Kevin Fitzgerald (Mr Fitzgerald), is liable for losses suffered by the respondent, Deloitte Services Pty Ltd (Deloitte), in connection with project management services provided to Deloitte by HBO EMTB Interiors (NSW) Pty Ltd (In Liquidation) (Interiors) and HBO EMTB Projects Pty Ltd (In Liquidation) (Projects). Deloitte commenced proceedings in the Commercial List of the Equity Division for recovery of the losses suffered. The defendants in the proceedings were Interiors, Projects, MrFitzgerald and three other individuals. The proceedings were subsequently settled as against the other three individuals.

4. For reasons published on 15 November 2016,[1] a judge of the Equity Division sitting in the Commercial List (the…