Otta International Pty Limited v Asia Pacific Carbon Pte Ltd [2017] NSWSC 1267

Supreme Court New South Wales

Medium Neutral Citation: Otta International Pty Limited v Asia Pacific Carbon Pte Ltd [2017] NSWSC 1267 Hearing dates: 6 September 2017 Decision date: 20 September 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the plaintiff against the third defendant in the sum of $165,868.69.

(2) Judgment for the plaintiff against the fourth defendant in the sum of $165,868.69.

(3) Subject to order (4), order the third and fourth defendants to pay the plaintiff's costs of the proceedings.

(4) Any party, who wishes to make an application for a costs order other than the order in (3) above, must make an application in writing to my Associate within seven days of the date of these orders and serve the application on the other parties. Such application will be dealt with on the papers, after an opportunity has been given for the other parties to respond in writing. Catchwords: AUSTRALIAN CONSUMER LAW – misleading and deceptive conduct pursuant to s 18 of Sch 2 of the Competition and Consumer Act 2010 (Cth) – claim for damages – where plaintiff entered into two loan agreements based on representations made by defendants– whether representations made to induce plaintiff to advance monies under the loan agreements were false, misleading or deceptive – where fourth defendant was bankrupt and fact of bankruptcy not disclosed – where fourth defendant represented himself as an "executive chairman" – HELD – failure of fourth defendant to disclose fact of bankruptcy was misleading and deceptive – third defendant involved in contravention – representation by fourth defendant as "chairman" misleading and deceptive as he was not entitled to hold office during bankruptcy– plaintiff has established that it suffered loss because of conduct of third and fourth defendants – but for misleading and deceptive conduct plaintiff would not have advanced monies under the loan agreements Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 2, 4, 18, 29, 236, Corporations Act 2001 (Cth), ss 57A, 127, 128, 129, 206B Trade Practices Act 1974 (Cth), s 52 Cases Cited: Arnison v Smith (1889) 41 Ch D 348 Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; [1986] HCA 3 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357; (1999) 43 IPR 545 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Jones v Acfold Investments Pty Ltd (1985) 6 FCR 512 Medical Benefits Fund of Australia Ltd v Cassidy; John Bevins Pty Ltd v Cassidy (2003) 135 FCR 1; [2003] FCAFC 289 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 Smith v Chadwick (1884) 9 App Cas 187 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Category: Principal judgment Parties: Otta International Pty Limited (ACN 002 393 535) (Plaintiff) Asia Pacific Carbon Pte Ltd (First Defendant) Asia Pacific Carbon Pty Ltd (ACN 146 028 140) (Second Defendant) Julie Kane (Third Defendant) Peter Kane(Fourth Defendant) Representation: T Terei (Director of Plaintiff company, by leave) Third Defendant (self-represented) Fourth Defendant (self-represented) File Number(s): 2015/220270