Marks v GIO Australia Holdings Ltd

This case concerned an appeal by borrowers against GIO Australia Holdings Limited and others, following a decision of the Federal Court of Australia. The dispute arose from allegations of misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) and the *Fair Trading Act 1987* (NSW). The borrowers contended that GIO's conduct had caused them loss or damage, and sought relief under these legislative provisions.

The High Court was required to determine the appropriate measure of damages or relief available to the borrowers under sections 82 and 87 of the *Trade Practices Act 1974*. Specifically, the Court had to consider whether the relief available under section 87 was broader than that under section 82, and whether the analogy to common law tortious damages, as discussed in previous cases, was appropriate for construing the remedial provisions of the Act. The Court also had to assess whether the specific relief sought by the borrowers, in light of their subsequent choices, constituted a proper exercise of the court's discretion under section 87.

The Court reasoned that the *Trade Practices Act 1974*, being remedial legislation designed to protect consumers and promote fair trading, should be construed broadly to achieve its intended objectives. It distinguished section 87 from section 82, noting that section 87 provides for a wider range of orders and can apply not only where loss has been suffered but also where it is likely to be suffered. The Court found that the analogy to tortious damages, while potentially relevant to section 82, was not an appropriate or exhaustive guide for interpreting the expansive remedial powers granted by section 87. The Court concluded that the borrowers had not established a case for relief under either section 82 or section 87, as the increased contractual liability they faced was a result of their own exercise of choice rather than solely GIO's conduct.

The appeal was dismissed with costs. However, a special order made by the Full Federal Court in relation to one borrower, Mrs Alexandra Williamson, concerning the service of a notice and its impact on interest rates, was to stand for determination by the primary judge.