Arktos Pty Ltd v Idyllic Nominees Pty Ltd [2004] FCAFC 119

FEDERAL COURT OF AUSTRALIA

Arktos Pty Ltd v Idyllic Nominees Pty Ltd [2004] FCAFC 119

PRACTICE AND PROCEDURE –appellants sued respondents in respect of misleading or deceptive conduct – claims made in the alternative under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA) – first respondent a trading corporation – second and third respondents directors of the first respondent – judgment recovered against first respondent – trial judge declined to enter judgment against second and third respondents because no pleading that either of them engaged in trade or commerce "on his own account" – whether necessary so to plead in relation to the Fair Trading Act claim – whether in any event the appellants were entitled to judgment against the third respondent on the facts pleaded and proved. Fair Trading Act 1987 (WA), s 79 Trade Practices Act 1974 (Cth), s 52 Cleary v Australian Co-operative Foods Ltd (1999) 32 ACSR 701 referred to Lauriana Pty Ltd v Corfield Food Warehouse Pty Ltd, unreported, Supreme Court of Western Australia, Wallwork J, 28 April 1995 referred to Citibank Ltd v Liu [2003] NSWSC 569 referred to Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525 referred to Ravinder Rohini Pty Ltd v Krizaic (1991) 30 FCR 300 followed Cubillo v The Commonwealth (2001) 112 FCR 455 followed

ARKTOS PTY LTD and LINDA DAVIES v IDYLLIC NOMINEES PTY LTD, DONALD GEORGE MOORE, DAVID IAN PRICE and SKYCORP INVESTMENTS PTY LTD W89 OF 2003 CARR, TAMBERLIN & RD NICHOLSON JJ 10 MAY 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W89 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ARKTOS PTY LTD (ACN 093 410 247)

FIRST APPELLANT

LINDA DAVIES

SECOND APPELLANT