Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329

New South Wales Court of Appeal

CITATION: Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329

HEARING DATE(S): 9 October 2009

JUDGMENT DATE: 28 October 2009

JUDGMENT OF: Campbell JA at 1; Bergin CJ in Eq at 2; Sackville AJA at 3

1. Appeal allowed. 2. The orders made by the primary Judge on 21 November 2008 set aside. DECISION: 3. Direct that the matter be remitted to the District Court and that there be a new trial of the respondent's claim and the appellant's cross-claim. 4. The respondent pay the appellant's costs of the appeal. 5. The costs of the trial be reserved for determination by the District Court. 6. The respondent, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).

CATCHWORDS: FAIR TRADING - whether alleged representations made- whether representations, if made, were misleading or deceptive. - REASONS - whether primary Judge gave adequate reasons for finding that the representations were not made and, if made, did not constitute misleading or deceptive conduct- whether a retrial should be ordered.

Trade Practices Act 1974 (Cth) ss 52, 82(1) LEGISLATION CITED: Fair Trading Act 1987 (NSW) ss 41, 42(1), 68(1), 72 (1), 72(5)(a),(c) Suitors Fund Act 1951 (NSW)

CATEGORY: Principal judgment

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 257 ALR 610 CASES CITED: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109 Palmer v Clarke (1989) 19 NSWLR 158 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247