Australian Competition and Consumer Commission v Kaye (No 2) [2004] FCA 1628

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Henry Kaye and National Investment Institute Pty Ltd (No 2) [2004] FCA 1628 PRACTICE AND PROCEDURE – costs – whether costs should follow the event – where applicant failed to make out a part of its pleaded case on the evidence – where respondent seeks to have costs apportioned – whether costs of motion should be awarded to respondent or lie where they fall – no question of principle Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 1979 (Cth) O 62 r 15 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 referred to Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 referred to Latoudis v Casey (1990) 170 CLR 534 referred to Cummings v Lewis (1993) 41 FCR 599 referred to Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 referred to Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40–748 referred to AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v HENRY KAYE AND NATIONAL INVESTMENT INSTITUTE PTY LTD (ACN 098 189 863) V 921 OF 2003 KENNY J 10 DECEMBER 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 921 OF 2003

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

APPLICANT

AND: HENRY KAYE

FIRST RESPONDENT

NATIONAL INVESTMENT INSTITUTE PTY LTD

(ACN 098 189 863)

SECOND RESPONDENT

JUDGE: KENNY J

DATE OF ORDER: 10 DECEMBER 2004

WHERE MADE: MELBOURNE

the court declares that:

1. The first respondent (Henry Kaye) engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of section 52 of the Trade Practices Act 1974 (Cth) ("the TPA"), by making, in radio advertisements in the form set out in Annexure A to the Amended Statement of Claim, broadcast between 10 September 2003 and 18 September 2003 on radio stations Fox FM in Melbourne and 2 Day FM in Sydney, representations:-