Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135

FEDERAL COURT OF AUSTRALIA

Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135 Citation: Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135

Appeal from: Clifford v Vegas Enterprises Pty Ltd (No 5) [2010] FCA 916

Parties: PHILIP GEORGE CLIFFORD v VEGAS ENTERPRISES PTY LTD (ACN 009 078 148), RODNEY DESMOND HART and GEOFFREY BRIAN BACKSHALL

File number: WAD 231 of 2010

Judges: NORTH, BESANKO & JESSUP JJ

Date of judgment: 3 November 2011

Catchwords: TRADE PRACTICES — appeal from decision of trial judge dismissing appellant's application for relief pursuant to ss 1041H, 1041I, 79 and 1325 of the Corporations Act 2001 (Cth) ('the Corporations Act') and ss 10, 68, 79 and 77 of the Fair Trading Act 1987 (WA) ('FTA') in connection with the purchase of shares by a trustee company controlled by him in the first respondent company — where second and third respondents were directors of respondent company — where appellant pleaded that the respondents were guilty of misleading and deceptive conduct in connection with the purchase of the shares by making a false representation in a spreadsheet containing financial information about the first respondent and by failing to disclose certain information about the first respondent to him — where appellant, a barrister, had long history of involvement with the first respondent as its legal advisor — whether trial judge erred in failing to find that the spreadsheet conveyed a false representation — whether trial judge erred in failing to find that the appellant relied on spreadsheet — whether appellant's evidence that he relied on spreadsheet was challenged during cross-examination — whether trial judge erred in finding that the representations made in the spreadsheet were made on reasonable grounds — whether spreadsheet was provided to the appellant as information material to his decision — whether trial judge failed to give sufficient weight to his finding that appellant was entitled to rely on the spreadsheet — whether trial judge disbelieved the applicant — whether trial judge erred in finding adverse inference could be drawn from appellant's failure to call his accountant — whether trial judge erred in finding that the third respondent was acting on behalf of the second respondent in respect of the provision of the spreadsheet for the purpose of s 10 of the FTA — whether trial judge erred in holding that respondents had not engaged in misleading or deceptive conduct by failing to disclose certain information to the appellant — whether trial judge erred in finding that appellant not entitled to expect that certain information would be disclosed — whether trial judge misapplied test of reasonable expectation — whether trial judge erred in holding that had misleading and deceptive conduct been made out it was appropriate to order a refund of the amount paid for the shares pursuant to ss 1325(5)(d) of the Corporations Act and s 77(3)(d) of the FTA — whether the appellant was beneficial owner of the shares — whether order could be made to transfer the shares in absence of the trustee company which legally owned the shares and the appellant's former wife to whom a parcel of the shares had been transferred Held: The appeal was dismissed.