Kendirjian v Lepore & Anor

[2016] HCATrans 266

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 J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 NOVEMBER 2016, AT 10.00 AM

KIEFEL J: The appellant and the first respondent in this proceeding filed a consent on 29 August 2016. The Court makes the following orders by consent:

1.Appeal allowed from the Supreme Court of New South Wales, Court of Appeal’s decision in relation to the first respondent.
2.Set aside the orders of the Supreme Court of New South Wales, Court of Appeal made on 21 May 2015 and 1 June 2015 insofar as they apply to the first respondent.
3.In lieu thereof, order that the appeal against the first respondent to the Supreme Court of New South Wales, Court of Appeal be allowed and the orders made by District Court Judge Taylor SC on 16 May 2014 insofar as they relate to the first respondent be set aside and in lieu thereof order that the Notice of Motion filed by the first respondent on 29 July 2013 in the District Court of New South Wales be dismissed.
4.The first respondent pay the appellant’s costs of and incidental to the first respondent’s Notice of Motion filed in the District Court of New South Wales on 29 July 2013.
5.The first respondent pay the appellant’s costs of and incidental to the application for leave to appeal and the appeal to the Supreme Court of New South Wales Court of Appeal below against the judgment and orders made by District Court Judge Taylor SC in favour of the first respondent.
6.The first respondent pay the appellant’s costs of and incidental to the application for special leave to appeal and the appeal to the High Court of Australia against the judgment and orders made by the Supreme Court of New South Wales, Court of Appeal on 21 May 2015 and 1 June 2015 in favour of the first respondent.
7.Insofar as the appellant and first respondent are concerned, remit the matter to the District Court of New South Wales.

AT 10.02 AM THE MATTER WAS ADJOURNED

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a dispute between the appellant, Mr. Kendirjian, and the respondents, Lepore and another. The core of the disagreement involved allegations of misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)).

The central legal question before the High Court was whether the respondents had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in relation to representations made about the appellant's business. Specifically, the court had to consider the nature of the representations, the context in which they were made, and whether they conveyed a false or misleading impression to the recipients.

The High Court's reasoning focused on the objective test for misleading or deceptive conduct. It considered the likely effect of the representations on a reasonable member of the class of persons to whom they were directed. The court analysed the evidence to determine if the representations, viewed in their surrounding circumstances, were capable of misleading or deceiving such a person. The principles applied involved a careful examination of the language used, the overall impression created, and the potential for ambiguity or misinterpretation.

The High Court allowed the appeal, finding that the conduct of the respondents was misleading and deceptive. The court made orders accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established