Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Robinson v 470 St Kilda Road Pty Ltd [2018] FCAFC 84 Appeal from: 470 St Kilda Road Pty Ltd v Robinson [2017] FCA 597
File number: VID 666 of 2017
Judge: MCKERRACHER, RANGIAH AND MARKOVIC JJ
Date of judgment: 1 June 2018
Catchwords: DAMAGES – loss or damage – assessment of damages – causation – where the claim for damages was run as an "all or nothing" case – whether the primary judge erred in concluding that the consequence of the appellant's failure to disclose its financial position was that the respondent would not have paid a sum in respect of the payment claim – where the primary judge's conclusion at trial was open on the evidence adduced and the case as pleaded CONSUMER LAW – misleading or deceptive conduct – loss or damage – assessment of damages – proportionate liability – application of Competition and Consumer Act 2010 (Cth) Pt VIA, Proportionate liability for misleading and deceptive conduct – "apportionable claim" – "concurrent wrongdoer" – Tesco liability – whether the director's liability for an act should be reduced from 100% to 50% to be shared with the company
Legislation: Competition and Consumer Act 2010 (Cth) Pt VIA Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer Law ss 18, 236, 237, 243 Corporations Act 2001 (Cth) s 439A(4)(a) Trade Practices Act 1974 (Cth) ss 82, 87 and 87CB(3) Building and Construction Industry Security of Payment Act 2002 (Vic) Wrongs Act 1958 (Vic) Pt IVAA
Cases cited: 470 St Kilda Road Pty Ltd v Reed Constructions Australia Pty Ltd [2012] VSC 235 Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 Barnes v Forty Two International Pty Ltd (2014) 316 ALR 408 Blatch v Archer [1774] 1 Carp 63 Cummins Generator Technologies Germany GMBH v Johnson Controls Australia Pty Ltd (2015) 326 ALR 556 Dunn v Hanson Australasia Pty Ltd (2017) 12 ACTLR 138 Ex parte Ferguson; Re Alexander (1944) 45 SR(NSW) 64 Façade Treatment Engineering Pty Ltd (In Liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 116 ACSR 493 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Hadgelias Holdings Pty Ltd v Seirlis [2015] 1 Qd R 337 Hamilton v Whitehead (1988) 155 CLR 121 Henville v Walker (2001) 206 CLR 459 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Murphy v Overton Investments Pty Limited (2004) 216 CLR 388 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2018] NSWSC 412 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Tomasetti v Brailey (2012) 91 ATR 531 Williams v Pisano (2015) 90 NSWLR 342
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