Jewelsnloo Pty Ltd v Sengos (No 2)

The plaintiff, Jewelsnloo Pty Ltd, sought relief against the defendants in relation to a business purchase and associated misrepresentations. The plaintiff alleged that the vendors had made misrepresentations about the business's turnover, the subsistence of a restraints of trade deed, and the prior vendor's intention to compete. The plaintiff also claimed that the defendants had engaged in passing off by using the plaintiff's business name and trade marks without permission. The plaintiff further sought rescission of the purchase contract on the basis of misleading and deceptive conduct and damages under various heads.

The court considered whether the plaintiff had relied on the alleged misrepresentations when entering into the contract and whether the representations had been made. The court found that the plaintiff had not relied on the misrepresentations concerning the business's turnover and the restraints of trade deed. Additionally, the court held that the representations concerning the prior vendor's intention to compete and the subsistence of the deed were not made. The court also determined that the plaintiff had established the necessary goodwill or commercial reputation for a passing off action, and that the defendants' conduct was likely to deceive ordinary customers.

The court rejected the plaintiff's claim for rescission, noting that the plaintiff had delayed in making the claim, continued to operate the business, and had not elected to rescind or offer to return the business to the vendors. The court held that restoration of the status quo had become impossible due to the plaintiff's actions. The court also dismissed the plaintiff's claim for damages for misleading and deceptive conduct, finding that the plaintiff had not provided sufficient evidence to support the claimed amount. The court further held that the plaintiff was not entitled to exemplary damages for the passing off as it had not proved any loss caused by the passing off.

The court made orders dismissing the plaintiff's claims and awarding costs to the defendants.