Pollock v Hicks

This case concerned an appeal by Ms Pollock against orders made by the primary judge in favour of Mr Hicks. Mr Hicks had alleged that Ms Pollock was involved in contraventions of the *Trade Practices Act 1974* (Cth) and the *Fair Trading Act 1987* (NSW), specifically concerning misleading or deceptive representations and unconscionable conduct. The central dispute revolved around whether Ms Pollock possessed the requisite knowledge to be held liable as an accessory to the conduct of her husband, Mr Pollock.

The legal issues before the Court of Appeal were whether Ms Pollock was involved in misleading or deceptive conduct contrary to section 42 of the *Fair Trading Act 1987* (NSW), and alternatively, whether she was involved in conduct in breach of that Act. The Court noted that the notice of contention filed by Mr Hicks sought to uphold the primary judge's decision on these grounds, which were analogous to the issues of accessorial liability under the *Trade Practices Act 1974* (Cth).

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The Court reasoned that to establish accessorial liability for misleading or deceptive representations, it must be proven that the alleged accessory knew that the representations were made and knew the facts that rendered them misleading or deceptive. Similarly, in the context of unconscionable conduct, while the precise knowledge required may differ, the claim of accessorial liability must fail if the fundamental element of knowledge is absent. The Court found no basis to conclude that Ms Pollock knew of the representations made by Mr Pollock to Mr Hicks in 2005, nor that she was involved in any misleading or deceptive conduct.

Consequently, the Court ordered judgment for Ms Pollock against Mr Hicks, with Mr Hicks to pay Ms Pollock's costs. The Court also ordered that Mr Hicks pay Ms Pollock's costs in the Court of Appeal and granted a certificate under the *Suitors’ Fund Act 1951* (NSW) if Ms Pollock qualified.