Fresh Express Pty Limited v Cerreto [2003] FCAFC 222

FEDERAL COURT OF AUSTRALIA

Fresh Express Pty Limited v Cerreto [2003] FCAFC 222 TRADE PRACTICES – misleading and deceptive conduct – alleged representation that landlord had not transferred or agreed to transfer fittings and fixtures to tenant – whether findings of fact of primary judge should be set aside Trade Practices Act 1974 (Cth) s 52 Federal Court of Australia Act 1976 (Cth) s 24 Fresh Express (Australia) Pty Limited v Larridren Pty Limited [2002] FCA 1312 affirmed Devries v Australian National Railways Commission (1993) 177 CLR 472 followed Abalos v Australian Postal Commission (1988) 171 CLR 167 followed Fox v Percy (2003) 197 ALR 22 followed Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) FCR 424 cited Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 cited Dearman v Dearman (1908) 7 CLR 549 cited Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 cited FRESH EXPRESS PTY LIMITED v CERRETO & ANOR N57 of 2003 HEEREY, R D NICHOLSON & SELWAY JJ MELBOURNE (HEARD IN SYDNEY) 3 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No N57 of 2003

BETWEEN: FRESH EXPRESS (AUSTRALIA) PTY LIMITED (ACN 065 867 218)

APPLICANT

AND: SALVATORE CERRETO

FIRST RESPONDENT

ALRAMON PTY LIMITED (ACN 001 660 144)

SECOND RESPONDENT

JUDGES: HEEREY, R D NICHOLSON & SELWAY JJ

DATE OF ORDER: 3 OCTOBER 2003

WHERE MADE: MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. 2. The appellant's motion by notice dated 29 June 2003 is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA