King v Yurisich [2006] FCAFC 136

FEDERAL COURT OF AUSTRALIA

King v Yurisich [2006] FCAFC 136

MISLEADING OR DECEPTIVE CONDUCT – Travel Compensation Fund – obligation to reimburse customers of failed travel agency – agency allowed to continue to participate in the fund because of misleading conduct of accountant and auditor – whether loss suffered was the full amount reimbursed or the difference between that amount and the amount that would have been reimbursed but for misleading conduct – whether loss could arise prior to contingent liability crystallising – whether loss suffered by customers where contracted services provided by third party Held: No liability to reimburse customers arose until the agency actually failed. The amount of the loss was the full value of the liability to the customers. Trade Practices Act 1974 (Cth), ss 52, 82(1) Fair Trading Acts 1985 (Vic), s 11 Fair Trading Act 1999 (Vic), s 9 Travel Agents Act 1986 (Vic), ss 6, 11(2), 16(1), 16(2), 37(3), 37(4), 45A(1), 46(2)–(4) Travel Compensation Fund v Tambree t/as R Tambree & Associates (2005) 80 ALJR 183; 222 ALR 263 applied Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 applied Gates v City Mutual Life Assurance Limited (1986) 160 CLR 1 cited Kenny & Good Pty Limited v MGICA (1992) Limited (1999) 199 CLR 413 cited William Brandt's Sons & Co v Dunlop Rubber Company Limited [1905] AC 454 followed Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 followed Banco de Portugal v Waterlow & Sons Limited [1932] AC 452 cited Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 applied JOHN MILLER CAMPBELL KING & OTHERS AS TRUSTEES OF THE TRAVEL COMPENSATION FUND v WAYNE JAMES YURISICH, CHERYL ANNE YURISICH, LANE MOLLER PARTNERS PTY LIMITED T/AS LANE MOLLER PARTNERS AND ROBERT YOUNG VID 1206 OF 2006