Politano v ACN 060 442 926 Pty Ltd [2000] FCA 882

FEDERAL COURT OF AUSTRALIA

Politano v ACN 060 442 926 Pty Ltd [2000] FCA 882

TRADE PRACTICES – assessment of damages under s 82 of Trade Practices Act 1974 (Cth) – misleading or deceptive conduct in contravention of s 52 of that Act, inducing company to buy a business – supply by or on behalf of seller of financial statements that included figures relating to a profitable part of the business that had in fact previously been sold – figures supplied portraying a profitable business whereas the part of the business remaining and the subject of the sale was trading at a loss – basis of assessment of damages – whether interest on amount borrowed to buy the business recoverable as well as pre-judgment interest under s 51A of Federal Court of Australia Act 1976 (Cth) – whether damages should be recovered for trading losses sustained by the purchaser and if so for what period of time. Trade Practices Act 1974 (Cth) s 82 BRUNO AND MARIA TERESA POLITANO & ANOR v ACN 060 442 926 PTY LIMITED & ORS NG 416 of 1998 LINDGREN J 26 JUNE 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 416 OF 1998

BETWEEN: BRUNO AND MARIA TERESA POLITANO

FIRST APPLICANTS/SECOND AND THIRD CROSS-RESPONDENTS

FRESH 'N CLEAN PTY LIMITED (ACN 078 797 994)

SECOND APPLICANT/FIRST CROSS-RESPONDENT

AND: ACN 060 442 926 PTY LIMITED

FIRST RESPONDENT/CROSS-CLAIMANT

JOSEPH MICHAEL JOHN FARRUGIA

SECOND RESPONDENT

SANDRA LEE FARRUGIA

THIRD RESPONDENT

JOHN CAINS

FOURTH RESPONDENT

GIUSEPPE POLITANO

FOURTH CROSS-RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 26 JUNE 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. There be judgment for the second applicant against the first, second and third respondents for $441,380.16 including interest of $84,252.84 down to today's date pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). 2. The first, second and third respondents pay the first and second applicants' costs of the proceeding. 3. The applicants must not at any time recover, or have recovered, pursuant to the judgment referred to in para (1) in favour of the second applicant against the first, second and third respondents and the judgment given by consent on 16 June 2000 in favour of the applicants against the fourth respondent, a total amount in excess of the maximum amount that they or any of them are entitled to recover pursuant to either one of those judgments. 4. The applicants have liberty to apply on 24 hours' notice generally, including in respect of the enforcement of the judgment referred to in para (1) and of the order referred to in para (2) above. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.