Portelli v Tabriska Pty Ltd & Ors

The case of *Portelli v Tabriska Pty Ltd & Ors* concerned a dispute between the appellant, Mr Porter, and the respondents, Tabriska Pty Ltd and others. The proceedings originated in the Supreme Court of New South Wales and were appealed to the Court of Appeal of New South Wales. The core of the dispute involved 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 primary legal issues before the Court of Appeal were whether the primary judge had erred in finding that the respondents had engaged in misleading or deceptive conduct, and whether the appellant had established the elements of the tort of deceit. Specifically, the court had to consider the nature of the representations made by the respondents, their truthfulness, and the appellant's reliance on those representations.

The Court of Appeal, comprising Heydon and Bell JJ, ultimately found that the primary judge had correctly assessed the evidence. Their Honours applied established principles regarding misleading and deceptive conduct, focusing on whether the representations made were likely to mislead or deceive a reasonable person in the position of the appellant. In relation to the tort of deceit, the court reiterated the requirement to prove fraudulent intent, which involves establishing that the representor knew the representation was false or was reckless as to its truth. The court concluded that the appellant had not discharged the onus of proof on either of these grounds.

Consequently, the appeal was dismissed, and the orders of the primary judge were affirmed.