Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57

FEDERAL COURT OF AUSTRALIA Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 Citation: Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57

Appeal from: Coolabah Tree Aust-Wide Pty Ltd v Dib Group Pty Limited [2010] FCA 805

Parties: DIB GROUP PTY LTD v COOLABAH TREE AUST-WIDE PTY LTD

File number(s): NSD 1046 of 2010

Judges: GRAY, LANDER AND KATZMANN JJ

Date of judgment: 3 May 2011

Corrigendum: 30 May 2011

Catchwords: PRACTICE AND PROCEDURE – power to vary judgment or order pursuant to Federal Court Rules O 35 r 7 – publication of supplementary reasons for judgment and new orders DAMAGES – whether primary judge erred in assessment of damages for repudiation of lease APPEAL AND NEW TRIAL – witness for one party preferred to those of another – circumstances under which credibility findings made by primary judge may be revisited on appeal TRADE PRACTICES – misleading and deceptive conduct – representations as to future matters – whether representations made in terms alleged – whether representations were misleading or deceptive – circumstances under which representations are adopted or endorsed – application of test in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 – reliance – whether company relied on representations regarding predicted turnover of business – whether inferences should have been drawn in favour of cross-appellant EVIDENCE – credibility – where witness not called by cross-respondent – whether primary judge failed to draw Jones v Dunkel inference despite saying he would PRACTICE AND PROCEDURE – argument on appeal not put in court below – not entertained