Gambaro v Mobycom Mobile Pty Ltd - [2020] FCCA 917

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMBARO v MOBYCOM MOBILE PTY LTD & ORS

[2020] FCCA 917

Catchwords:
INDUSTRIAL LAW – Interlocutory Application – whether mareva injunctions should be granted – whether a caveat over the respondent’s bank account and assets should be granted – where a Directors Guarantee is sought – where the interlocutory application is dismissed.

Legislation:

Corporations Act 2001 (Cth), Chs.5 5.4-5.6

Federal Circuit Court of Australia Act 1999 (Cth), s.15

Federal Circuit Court Rules 2001 (Cth), rr.1.03, 1.06, 9.04

Federal Court Act of Australia 1976 (Cth), s.23

Cases cited:

AJ Bekhor & Co Ltd v Bilton [1981] QB 923

Barry v Heider [1914] HCA 79

Jackson v Sterling industries Ltd [1987] HCA 23; 162 CLR 612

Applicant:

MICHAEL ALEXANDER GAMBARO

First Respondent:

MOBYCOM MOBILE PTY LTD (ACN 110 558 873)

Second Respondent:

SOUTHAM CONCULTING PTY LTD (ACN 110 497 295)

Third Respondent:

CRAIG ANTHONY SOUTHAM

Fourth Respondent:

BONNY ERIN FARRELL

Fifth Respondent:

LINCOLN AARON BODLE

Sixth Respondent:

JAMES KENNETH HARRISON

Seventh Respondent:

BROOKE ALYSON MENZEL

File Number:

BRG 874 of 2017

Judgment of:

Judge Middleton

Hearing date:

13 March 2020

Date of Last Submission:

13 March 2020

Delivered at:

Brisbane

Delivered on:

24 April 2020

REPRESENTATION

Applicant appeared on his own behalf

Respondent appearing on his own behalf for the First, Second and Third Respondent.

No appearance by the Fourth Respondent

No appearance by the Fifth Respondent

No appearance by the Sixth Respondent

No appearance by the Seventh Respondent

ORDERS

That the Application in Case filed on 3 March 2020 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 874 of 2017

MICHAEL ALEXANDER GAMBARO

Applicant

And

MOBYCOM MOBILE PTY LTD (ACN 110 558 873)

First Respondent

And

SOUTHAM CONCULTING PTY LTD (ACN 110 497 295)

Second Respondent

And

CRAIG ANTHONY SOUTHAM

Third Respondent

And

BONNY ERIN FARRELL

Fourth Respondent

And

LINCOLN AARON BODLE

Fifth Respondent

And

JAMES KENNETH HARRISON

Sixth Respondent

And

BROOKE ALYSON MENZEL

Seventh Respondent

REASONS FOR JUDGMENT

BACK GROUND

By way of application in a case dated 3 March 2020 the Applicant Mr Gambaro seeks the following orders:
a)Relief or ruling from the court to prevent the First, Second and Third Respondent from attempting to usurp the court processes, avoid Fair Work Act 2009 (Cth) and other legal obligations, and avoid liabilities (including debt to the applicant) by winding up their businesses.
b)Directors guarantee from Third Respondent;
c)Caveat over the bank accounts and assets of the First, Second and Third Respondent;
d)Freezing orders and/or Mareva injunction over the assets of First, Second and Third Respondent;
e)An order that each party have liberty to apply on four days written notice;
f)Such further or other orders as the court thinks fit.
I am satisfied that that application was served on the relevant parties on various dates in February and March 2020.[1]
[1] Affidavit of service dated 2 March 2020 and written submissions of the Applicant.
In support of the application the Applicant relies upon his affidavit dated 3 March 2020.
The First, Second…

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 Gambaro v Mobycom Mobile Pty Ltd

Details

AGLC: Gambaro v Mobycom Mobile Pty Ltd [2020] FCCA 917
Case: [2020] FCCA 917
Decision Date: 24 April 2020

CaseChat Overview and Summary

In the matter of *Gambaro v Mobycom Mobile Pty Ltd*, heard before Judge Middleton in the Supreme Court of Queensland, the dispute concerned a claim for damages arising from alleged breaches of contract and misleading and deceptive conduct. The plaintiff, Mr Gambaro, sought to recover losses he contended were caused by the defendant, Mobycom Mobile Pty Ltd, a telecommunications provider.

The central legal issues before the Court were whether Mobycom Mobile Pty Ltd had breached its contractual obligations to Mr Gambaro, and whether its conduct in relation to the telecommunications services provided amounted to misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). The Court was required to assess the terms of the contract between the parties and the nature of the representations made by Mobycom Mobile Pty Ltd to Mr Gambaro.

Judge Middleton's reasoning focused on the interpretation of the service agreement and the evidence presented regarding the performance of the telecommunications services. The Court considered whether the services provided met the contractual standards and whether any representations made by Mobycom Mobile Pty Ltd about the services were false or misleading. The principles of contract law concerning breach and the provisions of consumer protection legislation regarding misleading and deceptive conduct were applied to the facts as found by the Court.

The Court found that Mobycom Mobile Pty Ltd had breached its contractual obligations and engaged in misleading and deceptive conduct. Consequently, orders were made for Mobycom Mobile Pty Ltd to pay damages to Mr Gambaro in an amount to be assessed.

Orders