MCGOWAN v Direct Mail and Marketing Pty Ltd (No.2)

In *McGowan v Direct Mail and Marketing Pty Ltd (No.2)*, heard in the District Court of New South Wales, the applicant, Mr. McGowan, sought to recover damages from the respondent, Direct Mail and Marketing Pty Ltd, for alleged breaches of contract and misleading and deceptive conduct. The dispute arose from a marketing campaign conducted by the respondent on behalf of the applicant, which Mr. McGowan claimed resulted in significant financial losses.

The primary legal issues before the court were whether the respondent had breached its contractual obligations to the applicant and whether its conduct in relation to the marketing campaign constituted 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 agreement between the parties and the nature of the representations made by the respondent to determine liability.

Judge McNab found that the respondent had breached its contractual obligations by failing to exercise reasonable care and skill in the execution of the marketing campaign. Furthermore, the court determined that the respondent had engaged in misleading and deceptive conduct by making representations about the likely success and reach of the campaign that were not substantiated. The court applied principles of contract law concerning the implied duty of care and skill, and the provisions of the *Trade Practices Act* relating to misleading and deceptive conduct, focusing on the objective misleading nature of the representations made.

The court ordered that the respondent pay damages to the applicant in an amount to be assessed, reflecting the losses suffered as a consequence of the breaches and misleading conduct.