Yortan Pty Ltd v Lord Buxton Pty Ltd & Ors [1986] FCA 569

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CATCHWORDS

TRADE PRACTICES - misleading statements - opinions as to future profitability - finding that not justified by objective facts - whether ground of liability - liability for predictions.

Trade Practices Act, 1974 s.52

Yortan Pty. Ltd. v. Lord Buxton Pty. Ltd. & Ors.

Qld G45 of 1984

PINCUS J. BRISBANE 28 NOVEMBER 1986

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G45 of 1984 GENERAL DIVISION )

BETWEEN: YORTAN PTY. LTD.

Applicant AND: LORD BUXTON PTY. LTD.

First Respondent AND: KEN BADE

Second Respondent

AND: MICHAEL FARCOMENT

Third Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 28 NOVEMBER 1986 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

l. The application by the applicant against the second respondent be dismissed.

2. The applicant pay the second respondent's costs of and incidental to the proceedings, to be taxed.

Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) QLD G45 of 1984 GENERAL DIVISION )

BETWEEN: YORTAN PTY. LTD. Applicant AND: LORD BUXTON PTY. LTD.

First Respondent AND: KEN EADE Second Respondent

AND: MICHAEL FARCOMENT

Third Respondent

PINCUS J. 28 NOVEMBER 1986

REASONS FOR JUDGMENT

This 1s an application under s.52 of the Trade Practices Act by a company controlled by Antonius Van Eerdewyk. There are three respondents, but the case has proceeded against one only,

the second respondent, Ken Eade.

The only evidence at the hearing was given by Van Eerdewyk. Eade was not called. Although Van Eerdewyk's evidence was therefore uncontradicted, his case was, at least on the face of it, rather weak; plainly, the second respondent was not the

principal target of the applicant's attack.

The statement of claim alleges, and the second respondent's defence admits, that the first respondent engaged in the business of importing and dealing in perfumes and the like, and that the second respondent was a "promoter of or dealer in franchises or licences granted by the first respondent ..." The defence further admits that the second respondent caused an advertisement to be published in a newspaper called The Gold Coast Bulletin, calling for applications for distributorships "of a range of exclusive continental perfumes to established Gold Coast outlets". The heading of the advertisement was "Distributor $1,000 per week net". The defence admits that the advertisement represented that the business referred to in it was' likely to return to the distributor $1,000 per week net, but says that 1t was "the honestly held opinion of the second respondent that the business was likely to return to the distributor $1,000 per week net after the business had been operated for a reasonable time and assumed a reasonable amount of expertise and effort on the part of the individual distributor". The second respondent also says that his belief about the $1,000 per week was based upon advice given