Quinlivan v Australian Competition & Consumer Commission [2004] FCAFC 175

FEDERAL COURT OF AUSTRALIA

Quinlivan v Australian Competition & Consumer Commission [2004] FCAFC 175 TRADE PRACTICES (Cth) – misleading and deceptive conduct – system of marketing used to sell residential units on Gold Coast – representation as to eight per cent capital growth rate – accessorial liability – whether reversal of onus applies – whether onus on respondent to establish appellant had actual knowledge either that representation misleading or that representor had no reasonable grounds for making it Trade Practices Act 1974 (Cth) ss 51A, 52, 75B, 80, 155

Ting v Blanche (1993) 118 ALR 543 cited Yorke v Lucas (1985) 158 CLR 661 applied Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 cited Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 applied Su v Direct Flights International Pty Ltd [1999] FCA 78 applied Fernandez v Glev Pty Ltd [2000] FCA 1859 applied King v GIO Holdings Limited [2001] FCA 308 cited Sykes v Reserve Bank of Australia (1998) 88 FCR 511 cited Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439 applied DUDLEY JAMES QUINLIVAN v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Q211 OF 2003 HEEREY, SUNDBERG and DOWSETT JJ 5 JULY 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q211 OF 2003

On appeal from a single Judge of the Federal Court of Australia BETWEEN: DUDLEY JAMES QUINLIVAN

APPELLANT

AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGES: HEEREY, SUNDBERG and DOWSETT JJ

DATE OF ORDER: 5 JULY 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The declaration that in the period from November 1997 to 9 September 1998 the appellant was knowingly concerned in the contraventions of s 52 of the Trade Practices Act 1974 (Cth) by Oceana Commercial Pty Ltd and Markfair Pty Ltd and conspired with them and Christopher Russell Bilborough and National Asset Planning Corporation Pty Ltd to effect them be set aside.