Cryeng Pty Ltd v Loyola [2011] FCA 956

FEDERAL COURT OF AUSTRALIA

Cryeng Pty Ltd v Loyola [2011] FCA 956 Citation: Cryeng Pty Ltd v Loyola [2011] FCA 956

Parties: CRYENG PTY LTD ACN 071 997 763 v GEORGE HUMBERTO LOYOLA, PIONEER CRYOGENICS PTY LTD ACN 130 126 144, MALCOLM ALEXANDER DE SILVA and BRAMER HOLDINGS PTY LTD ACN 005 092 508

File number: NSD 1857 of 2008

Judge: STONE J

Date of judgment: 23 August 2011

Catchwords: TRADE PRACTICES – misleading and deceptive conduct – s 52(1) Trade Practices Act 1974 (Cth) (TPA); s 42(1) Fair Trading Act 1987 (NSW) (FTA) – whether representations made that the applicant was ceasing business and that the second respondent was its successor – whether representations misleading and deceptive – whether representations caused loss or damage – consideration of loss or damage under s 82(1) TPA and s 68(1) FTA – causation required – contravening conduct need not be the sole cause of loss CONTRACT – breach of contract – whether services agreement approved by board of applicant – whether agreement breached – agreement not approved in principle or otherwise – no binding agreement EVIDENCE – failure to call material witness – whether inference should be drawn – consideration of Jones v Dunkel – application of principle depends upon the evidence in the proceeding and circumstances of the case DAMAGES – damages for loss of reputation – s 82(1) TPA and s 68(1) FTA wide enough to include injury to reputation – consideration of amount of compensation to be awarded – difficulties in determining amount – damages for vindication of commercial reputation may be awarded – damages for loss of client contract – consideration of whether contract would have been profitable – damages awarded and interest pursuant to s 51A Federal Court of Australia Act 1976 (Cth)