Kendirjian v Lepore & Anor - [2017] HCATrans 17

[2017] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S170 of 2016

B e t w e e n -
DAVID KENDIRJIAN
Appellant
and
EUGENE LEPORE
First Respondent
JIM CONOMOS
Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 FEBRUARY 2017, AT 10.00 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR D.M.C. AQUILINA, for the appellant. (instructed by Longton Legal)

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MS A.M. HAWKINS, for the second respondent. (instructed by Carney’s Lawyers)

KIEFEL CJ: You have an application, I think, Mr Agius?

MR AGIUS: Yes, we do. Is it convenient to deal with it now?

KIEFEL CJ: Yes, you could outline it and we will hear Mr Walker’s response to it.

MR AGIUS: Your Honours, we have prepared a very short written document, two pages. Might I inquire if the Court has that, entitled “Respondent’s application to file a short supplementary written submission”.

KIEFEL CJ: It is filed very late, Mr Agius.

MR AGIUS: Yes, I apologise for that. It went to the Registry only this morning. We did flag in our written submissions that there was some attack on Attwells but we were not as precise about the attack as we should have been.

KIEFEL CJ: That is perhaps something of an understatement. Perhaps we should ask Mr Walker for your response.

MR WALKER: Your Honours, in our submission, there has not been any attempt in either the original written submission or the proposed supplementary one to cover the ground necessary for a reopening. None of the – I will call them “orthodox” ‑ none of them could be called “prerequisites”, it is in the hands of the Court as to whether you should hear an argument, but none of the orthodox bases upon which a reopening of any kind has been attempted. That is the first thing.

The second thing is that is all the stronger, bearing in mind the recency of the decision which is sought to be impugned and, in any event, in our submission, it is artificial to suppose ‑ even given the way it has been written in the proposed supplementary argument, it is artificial to suppose that there is not also an adverse effect on the hitherto perceived authority of D’Orta and maybe even Giannarelli involved in the proposed argument.

In our submission, there is absolutely no ground that has been laid for that to occur. Ironically, or perhaps forcefully, it can be observed that Attwells itself included a unanimous rejection of reopening of either D’Orta or Giannarelli. It is for those reasons, in our submission, not so much because the application is made late, but because it lacks merit and has not been demonstrated in an…

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.

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Details

Case: [2017] HCATrans 17
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the New South Wales Court of Appeal concerning a dispute between Mr Kendirjian and the respondents, Lepore and Anor. The core of the dispute involved allegations of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL) and the common law tort of deceit, arising from representations made in connection with the sale of a business.

The High Court was required to determine whether the representations made by the respondents regarding the business's financial performance were misleading or deceptive, and whether these representations were made with the requisite knowledge or intent for the tort of deceit. Specifically, the court had to assess the application of section 18 of the Schedule to the *Australian Consumer Law* and the elements of the tort of deceit in the context of commercial transactions.

The Court's reasoning focused on the objective test for misleading or deceptive conduct under the ACL, considering whether the representations, viewed in their full context, were likely to mislead or deceive a reasonable consumer. Regarding the tort of deceit, the Court examined the requirement of knowledge of falsity or reckless indifference to truth. The High Court ultimately found that the representations made were not misleading or deceptive under the ACL, nor were they made with the necessary fraudulent intent to establish the tort of deceit. The Court's analysis emphasised the importance of the overall impression conveyed by the representations and the state of mind of the representor.

The High Court allowed the appeal, setting aside the orders of the New South Wales Court of Appeal and ordering that the proceedings be remitted to the primary judge for determination of the remaining issues.

Orders