Rafferty v Time 2000 West Pty Limited (No 5) [2010] FCA 873

FEDERAL COURT OF AUSTRALIA

Rafferty v Time 2000 West Pty Limited (No 5) [2010] FCA 873 Citation: Rafferty v Time 2000 West Pty Limited (No 5) [2010] FCA 873

Parties: PATRICK CAMPBELL RAFFERTY, SANTORA HOLDINGS PTY LIMITED ACN 128 467 550 and KARAVILLE HOLDINGS PTY LIMITED ACN 009 439 178 v TIME 2000 WEST PTY LIMITED ACN 127 893 270, TIME 2000 SYSTEMS (AUSTRALIA) PTY LIMITED ACN 127 853 614, TIME 2000 OPERATIONS (AUSTRALIA) PTY LIMITED ACN 128 700 541, EMBLETON LIMITED (A COMPANY INCORPORATED IN HONG KONG), STEPHEN GERARD DONOVAN and MADGWICKS

File number: SAD 122 of 2008

Judge: BESANKO J

Date of judgment: 17 August 2010

Catchwords: TRADE PRACTICES — application for relief under s 87 of the Trade Practices Act 1974 (Cth) — where fifth respondent was a natural person and second, third and fourth respondents corporations associated with him — where applicants entered into agreements with second to fifth respondents and paid moneys under those agreements to certain of the respondents — where respondents found to have contravened ss 51AD and 52 of the Trade Practices Act 1974 (Cth) — where fifth respondent 'knowingly involved' in the s 52 contravention under s 75B(1) of the Trade Practices Act 1974 (Cth) — where applicants did not prove an amount of loss or damage — where applicants entitled to order rescinding the agreements — whether respondents who had not received moneys under the agreements could be jointly and severally liable for payment of the moneys to the applicants under s 87 Held: applicants entitled to compensation for moneys paid under the agreements — fifth respondent owned and controlled corporate respondents — appropriate to treat second, fourth and fifth respondents as all having received the moneys — second, fourth and fifth respondents jointly and severally liable under s 87(2)(c) for repayment to the applicants of moneys paid under the agreements — alternatively same order could be made under s 87(1) to compensate applicants for loss or damage incurred in entering into agreements where applicants would not have entered into same but for the contravention — appropriate to make order because second to fifth respondents related parties who all benefited from applicants' entry into agreements COSTS — where applicants successful against second to fifth respondents and unsuccessful against sixth respondent — where second to fifth respondents had brought cross-claim against sixth respondent — where applicants later joined sixth respondent — where applicants could not have succeeded against sixth respondent if they had failed against second to fifth respondents — where second to fifth respondents did not suggest sixth respondent solely liable — where it was not necessary for the applicants to join the sixth respondent — whether Sanderson order should be made Held: applicants not entitled to Sanderson order — applicants' decision to join sixth respondent not unreasonable — nothing in conduct of second to fifth respondents made it reasonable that they should bear sixth respondent's costs.