Steven Cominos appeared for the 4th and 5th defendants on a motion to dismiss a claim against them for unconscionable conduct and misleading or deceptive conduct. The claim was dismissed in its entirety by Pembroke J on 25 May 2018.
Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190
CONTRACT — implied terms — implication of duty or obligation of good faith and reasonableness — franchise agreement — where franchisor had discretionary power to set maximum prices for products — where parties accepted that power subject to duty of good faith — scope of duty of good faith and reasonableness — whether franchisor was obliged to act reasonably in an objective sense
NEGLIGENCE — franchise agreement — whether franchisor owed duty of care to franchisees in exercising power to set maximum prices for products — where franchisee alleged that franchisor owed franchisees a duty to exercise power so that franchisees could make, maintain or increase profits
CONSUMER LAW— unconscionable conduct — franchise agreement — where franchisee alleged that franchisor had engaged in unconscionable conduct in setting maximum prices for products
Tim Castle, James Arnott and Simona Gory represented the Appellant.
Reasons for the judgement can be found here.
Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546
From the Supreme Court of New South Wales:
BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach
Michelle McMahon was led by Andrew Pickles SC for the plaintiffs.
Menzies v Paccar Financial Pty Ltd [2016] FCA 400
ANSHUN ESTOPPEL - Whether applicants precluded by Anshun estoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success
David Rayment appeared for the finance company, PACCAR Financial Pty Ltd instructed by Mills Oakley Solicitors.
Jewelsnloo Pty Ltd v Sengos (No 2) [2016] NSWSC 61
TRADE AND COMMERCE – contract to purchase business – vendors made misrepresentation to the plaintiff concerning the turnover of the business – whether plaintiff relied upon the representation in entering into the contract to purchase the business – held plaintiff did not rely upon misrepresentation.
TRADE AND COMMERCE – vendors had benefit of restraints of trade deed with prior vendor that prevented prior vendor from competing with vendors – whether prior vendor had made misrepresentation to the plaintiff concerning intention to compete with the plaintiff – whether prior vendor and vendors had made misrepresentations to the plaintiff concerning the subsistence of the deed and the plaintiff’s entitlement to the benefit of the deed – held representations not made – whether prior vendor and vendors had made representations to the plaintiff by silence by failing to inform the plaintiff that the vendors had released the prior vendor’s obligations under the deed – held representations not made.
INTELLECTUAL PROPERTY – passing off – whether business had necessary goodwill or commercial reputation – goodwill or commercial reputation established – whether ordinary customers would be deceived by conduct of relevant defendants – conduct of relevant defendants found to be passing off.
RESTITUTION – plaintiff claimed order setting aside purchase of business on ground that plaintiff entered into the contract because of misleading and deceptive conduct by vendors – plaintiff claimed order for rescission under s 243 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – plaintiff delayed in claiming order – plaintiff continued to operate business – plaintiff did not elect to rescind or offer to return business to vendors – plaintiff would not have been entitled in any event to an order setting aside the purchase as restoration of the status quo had become impossible because of plaintiff’s actions.
DAMAGES – misleading or deceptive conduct – plaintiff not entitled to damages as claims dismissed – consideration of plaintiff’s claim for damages equal to the purchase price paid by the plaintiff for the business – plaintiff chose not to tender evidence of the difference between the purchase price and the market value of the business – applicable principles considered – plaintiff would not have been entitled to damages claimed in any event because the evidence established that the business had a value at the date of purchase and the plaintiff did not establish that it lost the benefit of the entirety of the purchase price.
DAMAGES – passing off – Exemplary, punitive and aggravated damages – plaintiff claimed damages instead of an account of profits – plaintiff did not prove it suffered any loss caused by the passing off – plaintiff not entitled to compensatory damages – plaintiff claimed exemplary damages for tort of passing off – applicable principles considered – plaintiff not entitled to exemplary damages.
David Jay appeared for the successful defendants.
Australian Competition and Consumer Commission v Gordon Superstore Pty Ltd [2014] FCA 452
CONSUMER LAW – retailer refused customer refund for a refrigerator and two replacement refrigerators – retailer told customer that their refund policy does not apply to large appliances – retailer told customer that customer’s remedy is only with manufacturer – retailer told customer that customer will not get a refund until retailer gets money from the manufacturer – orders sought by consent – appropriateness of penalty.
Competition and Consumer Act 2010 (Cth) ss 224, 232, 246; Evidence Act 1995 (Cth) s 191
Australian Consumer Law ss 18, 29(1)(m), 54; Federal Court of Australia Act 1976 (Cth) ss 21, 43.
Australian Consumer and Competition Commission v Camavit Pty Ltd [2013] FCA 1397
CONSUMER LAW – Consumer guarantee provisions misleading or deceptive conduct – representations about the existence, exclusion or effect of a guarantee, right or remedy – admitted contraventions – agreed orders – whether orders appropriate – whether civil penalty within appropriate range – compliance program.