| Fletcher v Nextra
Australia Pty Ltd (FCAFC) – consumer law – publication of article on internet blog was
misleading and deceptive conduct – appeal dismissed |
| Perisher Blue Pty Ltd
v Nair-Smith (NSWCA) – negligence – skier injured when ski-lift chair struck her – Perisher’s
breach of care did not cause skier’s injuries - appeal allowed |
| Mouti v Nguyen (NSWCA) – contract – sale
of half-share in business – irreconcilable findings – appeal allowed – matter remitted |
| Bong Bong Town Centre
v Illawarra Clay Target Club (NSWSC) – contract – lease – lessee required to
remove lead contamination from land and put it in condition suitable for
development |
| Westpac Banking
Corporation v Jamieson (QCA) – negligence – damages - investment advice – bank negligent and in
breach of contract – appeal and cross-appeals dismissed |
| Summaries With Link (Five Minute Read) |
Fletcher v Nextra Australia
Pty Ltd
[2015] FCAFC 52
Full
Court of the Federal Court of Australia
Middleton,
McKerracher & Davies JJ
Consumer
law – appellant involved in newsagency industry – appellant appealed from
primary judge’s decision that appellant’s publication of article on internet
blog was misleading and deceptive conduct in contravention of s18 Australian Consumer Law – article
criticised contents of flyer circulated by respondent – respondent was competitor
of company of which appellant was director and 50% shareholder – appellant
contended publishing blog not conduct in trade or commerce and that respondent
did not establish representations – Sch 2 Competition
and Consumer Act 2010 (Cth) - s52 Trade
Practices Act 1974 (Cth) - held: publication of article occurred in trade
or commerce - at least one representation correctly found to be representation
of fact – representation false and misleading – appeal dismissed.
Fletcher
|
Perisher Blue Pty Ltd v
Nair-Smith
[2015] NSWCA 90
Court
of Appeal of New South Wales
Barrett
& Gleeson JJA; Tobias AJA
Negligence
– causation - appellant operated ski fields– respondent injured when ski-lift
chair struck her – respondent sued appellant for damages and breach of contract
– primary judge upheld claim - appellant appealed – held: lift operator’s
failure to observe condition of chair as it exited bullwheel constituted breach of appellant’s duty of care - not open
to primary judge to conclude appellant’s breach was necessary condition of
occurrence of harm - respondent’s injuries not materialisation of inherent risk
- limitations on damages imposed by Pt 2
were invalid under s109 Constitution - limitations directly inconsistent with right
to “full contractual liability” conferred by s74(1) Trade Practices Act 1975 (NSW) (TPA) - ticket contract was for supply
of “recreational services” under s68(2) TPA - term of ticket contract which excluded
liability for more than personal injury or death was void by operation of s68
TPA – appeal allowed.
Perisher
|
Mouti v Nguyen [2015] NSWCA 93
Court
of Appeal of New South Wales
Leeming
JA, Bergin CJ in Eq & Sackville AJA
Contract
– appellant owned business – respondent negotiated with appellant to purchase a
fifty per cent share of business - respondent paid appellant portion of agreed
sale price and also worked in business for period - parties’ relationship
soured – appellant sold business – respondent sued for return of money –
appellant cross-claimed for balance of purchase price – primary judge gave judgment
for respondent and also found appellant’s cross-claim made out – primary judge
set off amount claimed to reduce judgment
in respondent’s favour - appellant
appealed - respondent sought leave to appeal – whether agreement reached
between parties - held: findings on main claim and cross-claim irreconcilable –
primary judge erred in failing to resolve factual disputes which were pivotal
to determination of parties’ intentions – primary judge made factual findings that
were inconsistent with evidence – Court not satisfied it was possible or
appropriate to make findings whether agreement reached – appeal allowed -
matter remitted for new trial.
Mouti
|
Bong Bong Town Centre v
Illawarra Clay Target Club
[2015] NSWSC 316
Supreme
Court of New South Wales
McDougall
J
Contract
– remediation clause - plaintiff leased land to defendant club - two variations
to lease – by second variation term of lease increased and new clause inserted –
dispute concerned club’s obligations to remediate land under clause of lease
read in conjunction with clause inserted by second variation – proper construction
of remediation clause – validity of notice for purposes of clause inserted by
second variation - held: club liable to remove lead contamination from and
otherwise make good leased land, and in default to reimburse plaintiff for
doing so.
BongBong
|
Westpac Banking Corporation v
Jamieson
[2015] QCA 50
Court
of Appeal of Queensland
McMurdo
P, Morrison JA & Applegarth J
Negligence
– investment advice – damages - primary
judge found bank in breach of contract and negligent in provision of investment
advice – primary judge also found bank’s conduct misleading or deceptive or likely
to mislead or deceive in contravention of s12DA(1) Australian Securities and Investments Commission Act 2001 (Cth) – parties
appealed and cross-appealed – held: bank’s appeal against finding of liability
in respect of superannuation investment dismissed - respondents’ cross-appeal
against decision to limit damages in relation to superannuation fund loan to
two years’ interest payments dismissed – first respondent’s cross-appeal concerning
methodology to gross-up his net loss dismissed.
Westpac
|
