Omega SA v Mark & Brenda Robinson

Omega SA (the plaintiff) brought proceedings against Mark and Brenda Robinson (the defendants) in the Supreme Court of Victoria. The dispute concerned allegations of misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) and the common law tort of deceit. The plaintiff sought damages for losses allegedly suffered as a result of representations made by the defendants concerning the financial performance of a business.

The central legal issues before the Court were whether the defendants had made representations that were misleading or deceptive, and whether those representations were made with the requisite fraudulent intent to establish deceit. Specifically, the Court had to determine if the defendants knew the representations to be false or were reckless as to their truth or falsity at the time they were made.

Justice Iain Thompson found that while the representations made by the defendants were indeed misleading, the plaintiff had failed to establish the necessary element of fraudulent intent for the tort of deceit. His Honour applied the principles established in cases concerning misleading and deceptive conduct, focusing on the objective nature of the representations and their effect on the plaintiff. However, for the common law claim, the Court required proof of subjective dishonesty or recklessness on the part of the defendants, which was not sufficiently demonstrated.

Consequently, the Court dismissed the claim for deceit but found in favour of the plaintiff on the statutory claim for misleading and deceptive conduct. The Court ordered that the defendants pay damages to the plaintiff, with the quantum to be determined at a later stage.