Wong v Citibank Ltd - [2004] NSWCA 396

Reported Decision:
(2004) ATPR 42-037
(2005) NSW ConvR 56-103

Court of Appeal

CITATION: DANIEL WONG as Executor of the Estate of the Late CASEY WONG (aka KAI CHEE WONG) v. Citibank Limited (ACN 004 325 080) & Ors. DANIEL WONG as Executor of the Estate of the Late CASEY WONG (aka) KAI CHEE WONG v. ABN AMRO BANK MV (ABRN 079 478 612) [2004] NSWCA 396

HEARING DATE(S): 9-10 September 2004

JUDGMENT DATE:
3 November 2004

JUDGMENT OF: Sheller JA at 1; Beazley JA at 2; Bryson JA at 27

DECISION: Appeal dismissed with costs

CATCHWORDS: TRADE PRACTICES - Fair Trading Act 1987 (NSW), s.42 - Trade Practices Act 1974 (Cth), s.52 - Contravention of either section does not require an intent to mislead or deceive - A corporation or individual that merely passes on false information supplied by another does not necessarily contravene s.42 or s.52 - Whether one who conveys a false representation makes that representation or acts as a mere conduit is a question of fact in each case - The question to be determined in each case is whether the conveyer of the false representation would be regarded by the relevant section of the public as adopting it - An employee acting within the scope of his or her employment may be liable for breach of s.42 of the Fair Trading Act and of s.52 of the Trade Practices Act.

LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Trade Practices Act 1974 (Cth).

CASES CITED: Amalgamated Television Services Pty. Limited v. Marsden [2002] NSWCA 419
Australian Competition and Consumer Commissioner v. McCaskey (2000) 104 FCR 8
Gardam v. George Wills & Co. Limited (1988) 82 ALR 415
John G. Glass Real Estate Pty. Limited v. Karawi Constructions Pty. Limited (1993) ATPR 41-249
Yorke v. Lucas (1985) 158 CLR 661

PARTIES :
CA 41159/2003
Daniel Wong As Executor of the Estate of the Late Casey Wong (Appellant)
Citibank Limited (ACN 004 325 080) Respondent
CA 41160/2003
Daniel Wong as Executor of the Estate of the Late Casey Wong (Appellant)
ABN AMRO Bank MV (ABRN 079 478 612) (Respondent)

FILE NUMBER(S): CA 41159/2003; 41160/2003

COUNSEL: S. Bell (Appellant)
M.A. Pembroke SC/T. Faulkner (Respondents)

SOLICITORS: Ian Burnham Mitchell (Appellant)
Mallesons Stephen Jaques (Respondents)

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 4660/99
ED 4662/99

LOWER COURT
JUDICIAL OFFICER : Hamilton J

CA 41159/03
CA 41160/03
ED 4660/99
ED 4662/99

SHELLER JA
BEAZLEY JA
BRYSON JA
3 November 2004

WONG (as executor estate late Casey Wong) v. CITIBANK LIMITED

(ACN 004 325 080)

WONG (as executor estate late Casey Wong) v. ABN AMRO BANK NV

(ABN 079 478 612)

HEADNOTE

The appellant was the general manager of an export company, Pacific Asia Merchandise Pty Limited (PAM). PAM had trade loan agreement facilities with the respondents in order to conduct its business. However, the underlying transactions that related to many of these facilities were false.

The respondents brought an action against the appellant for contravention of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 396
Decision Date: 3 November 2004

CaseChat Overview and Summary

The appeal concerned a dispute between Mr. Wong and Citibank Ltd. The core of the disagreement involved allegations of contravention of section 42 of the *Fair Trading Act 1987* (NSW) and section 52 of the *Trade Practices Act 1974* (Cth). The matter was heard in the Court of Appeal of New South Wales.

The legal issues before the court were whether a contravention of either section 42 or section 52 required an intent to mislead or deceive, and whether a party merely passing on false information supplied by another could be held liable under these provisions. Furthermore, the court had to determine the factual question of whether the conveyor of a false representation was adopting it, or acting as a mere conduit, and whether an employee acting within the scope of their employment could be personally liable for breaches of these sections.

The Court of Appeal held that neither section 42 nor section 52 necessitates an intention to mislead or deceive. It clarified that a party conveying false information does not automatically contravene these sections; the critical factual determination is whether the conveyor, in the eyes of the relevant section of the public, adopts the representation. The court affirmed that an employee acting within the scope of their employment can indeed be held liable for breaches of section 42 of the *Fair Trading Act* and section 52 of the *Trade Practices Act*.

The appeal was dismissed, and Mr. Wong was ordered to pay Citibank Ltd's costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	DANIEL WONG as Executor of the Estate of the Late CASEY WONG (aka KAI CHEE WONG) v. Citibank Limited (ACN 004 325 080) & Ors. DANIEL WONG as Executor of the Estate of the Late CASEY WONG (aka) KAI CHEE WONG v. ABN AMRO BANK MV (ABRN 079 478 612) [2004] NSWCA 396
HEARING DATE(S):	9-10 September 2004
JUDGMENT DATE:	3 November 2004
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Bryson JA at 27
DECISION:	Appeal dismissed with costs
CATCHWORDS:	TRADE PRACTICES - Fair Trading Act 1987 (NSW), s.42 - Trade Practices Act 1974 (Cth), s.52 - Contravention of either section does not require an intent to mislead or deceive - A corporation or individual that merely passes on false information supplied by another does not necessarily contravene s.42 or s.52 - Whether one who conveys a false representation makes that representation or acts as a mere conduit is a question of fact in each case - The question to be determined in each case is whether the conveyer of the false representation would be regarded by the relevant section of the public as adopting it - An employee acting within the scope of his or her employment may be liable for breach of s.42 of the Fair Trading Act and of s.52 of the Trade Practices Act.
LEGISLATION CITED:	Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth).
CASES CITED:	Amalgamated Television Services Pty. Limited v. Marsden [2002] NSWCA 419 Australian Competition and Consumer Commissioner v. McCaskey (2000) 104 FCR 8 Gardam v. George Wills & Co. Limited (1988) 82 ALR 415 John G. Glass Real Estate Pty. Limited v. Karawi Constructions Pty. Limited (1993) ATPR 41-249 Yorke v. Lucas (1985) 158 CLR 661
PARTIES :	CA 41159/2003 Daniel Wong As Executor of the Estate of the Late Casey Wong (Appellant) Citibank Limited (ACN 004 325 080) Respondent CA 41160/2003 Daniel Wong as Executor of the Estate of the Late Casey Wong (Appellant) ABN AMRO Bank MV (ABRN 079 478 612) (Respondent)
FILE NUMBER(S):	CA 41159/2003; 41160/2003
COUNSEL:	S. Bell (Appellant) M.A. Pembroke SC/T. Faulkner (Respondents)
SOLICITORS:	Ian Burnham Mitchell (Appellant) Mallesons Stephen Jaques (Respondents)

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 4660/99 ED 4662/99
LOWER COURT JUDICIAL OFFICER :	Hamilton J