Sotiropoulos v Bico Designs Pty Ltd

Case [2013] FCA 25

FEDERAL COURT OF AUSTRALIA

Sotiropoulos v Bico Designs Pty Ltd [2013] FCA 25

Citation: Sotiropoulos v Bico Designs Pty Ltd [2013] FCA 25
Parties: JODIE-ANN SOTIROPOULOS v BICO DESIGNS PTY LTD ACN 083 107 573 (DEREGISTERED), JOSEPH BITON, MICHAEL COHEN, PETER ANTHONY GROSSMAN and BICO AUSTRALIA PTY LTD ACN 119 993 636
File number(s): NSD 2066 of 2011
Judge: JAGOT J
Date of judgment: 29 January 2013
Catchwords: TRADE PRACTICES – whether any reliance on representations by applicant – whether representations made out
Legislation: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth)
Cases cited: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Gould v Vaggelas (1985) 157 CLR 215
Henderson v Amadio Pty Ltd (No 1) (1995) 62 FCR 1
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546
Macquarie Generation v Peabody Resources Ltd (2001) Aust Contract R 90-121; [2000] NSWCA 361
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2001) 241 CLR 357; [2001] FCA 31
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
Ricochet Pty Ltd v Equity Trustees Executors and Agency Company Ltd (1993) 21 FCR 229
Wardley Austalia Ltd v Western Australia (1992) 175 CLR 514
Watson v Foxman (1995) 49 NSWLR 315
Date of hearing: 17 December 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: Mr M Klooster
Solicitor for the Applicant: TW Legal
Counsel for the Respondents: Mr R White
Solicitor for the Respondents: DC Legal

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2066 of 2011
BETWEEN:

JODIE-ANN SOTIROPOULOS
Applicant
AND:

BICO DESIGNS PTY LTD ACN 083 107 573 (DEREGISTERED)
First Respondent

JOSEPH BITON
Second Respondent

MICHAEL COHEN
Third Respondent

PETER ANTHONY GROSSMAN
Fourth Respondent

BICO AUSTRALIA PTY LTD ACN 119 993 636
Fifth Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

29 JANUARY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The applicant pay the respondents’ costs, as agreed or taxed.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2066 of 2011
BETWEEN:

JODIE-ANN SOTIROPOULOS
Applicant
AND:

BICO DESIGNS PTY LTD ACN 083 107 573 (DEREGISTERED)
First Respondent

JOSEPH BITON
Second Respondent

MICHAEL COHEN
Third Respondent

PETER ANTHONY GROSSMAN
Fourth Respondent

BICO AUSTRALIA PTY LTD ACN 119 993 636
Fifth Respondent

JUDGE:

JAGOT J

DATE:

29 JANUARY 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. These reasons for judgment concern the determination of a question in this proceeding which I ordered be heard separately from any other question in the proceeding on 28 June 2012.  The question is whether a deed of settlement dated 23 May 2008 (the Deed) should be set aside pursuant to s 87 of the Trade Practices Act 1974 (Cth) (the

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Sotiropoulos v Bico Designs Pty Ltd [2013] FCA 25
Case
[2013] FCA 25
Decision Date

CaseChat Overview and Summary

Sotiropoulos v Bico Designs Pty Ltd involves a dispute where the plaintiff, Mr Sotiropoulos, sought to set aside a deed of release executed between him and the defendant, Bico Designs Pty Ltd, on the basis of alleged misrepresentations. The case was heard by the District Court of New South Wales. The plaintiff argued that the defendant made certain representations that induced him to enter into the deed, which he claimed should be set aside under Section 87 of the Trade Practices Act.

The central legal issue the court had to decide was whether the plaintiff was induced to enter into the deed by any misrepresentations made by the defendant. The court examined the circumstances under which the deed was signed, the timing of the events, and the information available to the plaintiff at the relevant time. Specifically, the court needed to determine if the representations, if any, were material and whether they influenced the plaintiff's decision to enter into the deed.

The court found that the plaintiff was not induced by any misrepresentations to enter into the deed. The court reasoned that the plaintiff had access to information that any rational person would have considered immaterial to the decision to enter into the deed. Additionally, the court held that the representations, even if they had been made, were not capable of materially affecting the plaintiff's perception of his gains and losses from the agreement. Consequently, the court concluded that the plaintiff remained bound by the terms of the deed.

The court dismissed the plaintiff's application to set aside the deed. The final order was that the proceeding be dismissed, with the plaintiff to pay the respondents’ costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, Mr Grossman received the letter on 2 May 2008. The ASIC decision to disqualify Mr Grossman from being a director was not announced until 18 February 2009 and a decision in the Administrative Appeals Tribunal affirming the decision of ASIC was not published until 12 January 2011. The District Court proceeding had settled some time before either of these dates. Even if the applicant had known of the letter to Mr Grossman all she would have known at the date of the mediation was that he was under investigation. It is highly improbable that any rational person could have perceived the fact of an investigation as material to the decision whether or not to enter into the Deed and there is no basis to infer that the applicant acted other than rationally when she in fact entered into the Deed.CONCLUSION I am not satisfied that any of the representations as pleaded by the applicant are made out. Even if the representations were made none of them were capable of materially affecting the applicant’s perceptions of what she had to gain and lose from entering into the Deed at the time of mediation and I am not satisfied she was thereby induced by the alleged representations to enter into the Deed. The applicant took the benefit of the Deed at the time and remains bound by it. The answer to the separate question, accordingly, is “no” – the Deed should not be set aside pursuant to s 87 of the Trade Practices Act. The applicant is bound by the release in the Deed and is precluded from pursuing the other relief set out in the second further amended statement of claim. Accordingly, the appropriate order is that the proceeding be dismissed and the applicant pay the respondents’ costs.

Ratio Decidendi

Legal Principle Established

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