Avoca Consultants Pty Ltd v Millennium3 Financial Services Pty Ltd [2009] FCA 883

FEDERAL COURT OF AUSTRALIA

Avoca Consultants Pty Ltd v Millennium3 Financial Services Pty Ltd [2009] FCA 883

TRADE PRACTICES – financial services – suspension of representative under corporate authorised representative agreement deed – termination of deed – whether material breach of deed by representatives – if so, whether representative suspended and deed terminated for reason other than material breach of deed – whether representation made that suspension or termination of deed would only follow material breach – if so, whether representation constituted misleading or deceptive conduct – if no material breach of deed, whether representation that no areas of non‑compliance with material obligations under the deed required rectification – whether representation by entering into deed that respondent would provide training to applicants – whether representation constituted misleading and deceptive conduct – whether s 52 Trade Practices Act 1974 not applicable to misleading and deceptive conduct pleaded and s 12DA Corporations Act 2001 applicable

HELD – material breach of deed by applicants – suspension of representative and termination of deed lawful – s 52 Trade Practices Act 1974 applicable to pleaded conduct – representation made that representative would not be suspended and deed would not be terminated except for material breach – no misleading or deceptive conduct in respect of such representation – no representation by respondent that applicants were complying with material obligations under deed and no areas of non‑compliance required rectification – representation that respondent would train applicants – no misleading and deceptive conduct in respect of representation that respondent would train applicants – respondent not liable to applicants – applicants not entitled to declaration that respondent not entitled to suspend second applicant and terminate deed – no entitlement to damages and/or compensation for loss and damage caused by suspension and termination