North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1

FEDERAL COURT OF AUSTRALIA

North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1 Citation: North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1

Appeal from: North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 4) [2010] FCA 700

Parties: NORTH EAST EQUITY PT LTD (ACN 009 248 819) v PROUD NOMINEES PTY LTD (ACN 074 270 938) and DAVID LEWIS PROUD

File number: WAD 204 of 2010

Judges: MANSFIELD, GREENWOOD AND BARKER JJ

Date of judgment: 19 January 2012

Catchwords: TRADE PRACTICES – consideration of the construction of s 51A of the Trade Practices Act 1974 (Cth) (now in an amended form as s 4 of the Australian Consumer Law, Schedule 2, to the Competition and Consumer Act 2010 (Cth)) – consideration of a challenge to the primary judge's finding that the respondents had discharged the evidential burden under s 51A(2) of the Trade Practices Act and a challenge to the finding that the appellant had failed to discharge the persuasive onus under s 51A(1) of the Trade Practices Act – consideration of the evidential burden and the persuasive onus under s 51A in circumstances where a representation as to a future matter is shown to have come to pass, or not shown not to have come to pass. CONSUMER LAW – consideration of the evidential burden arising under s 51A(2) of the Trade Practices Act and the persuasive onus arising under s 51A(1) of the Trade Practices Act.

Legislation: Trade Practices Act 1974 (Cth), s 51A

Cases cited: Australian Competition and Consumer Commission v Universal Sports Challenge [2002] FCA 1276; cited Fubilian Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1205; cited McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230; cited.