Pattinson v Bellwether Agriculture Pty Ltd (In Liq) [2018] NSWSC 38

Supreme Court New South Wales

Medium Neutral Citation: Pattinson v Bellwether Agriculture Pty Ltd (In Liq) [2018] NSWSC 38 Hearing dates: 23 to 26 October and 1 November 2017 and On the papers 16 November 2017 Decision date: 05 February 2018 Before: Ball J Decision: See paragraphs 64 and 65 of this judgment. Catchwords: TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – misleading and deceptive conduct. DAMAGES – assessment of damages where loan the subject of the claim repaid and re-advanced by discretionary trust controlled by the lender – recovery of mitigation costs – whether an order should be made under Fair Trading Act 1987, s 72, for the payment of a sum of money to the trustee of the discretionary trust controlled by the lender – approach court should adopt on assessment of damages on an ex parte application. BANKRUPTCY – whether claim for misleading and deceptive conduct provable in bankruptcy. Legislation Cited: Bankruptcy Act 1966 (Cth) Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Corporations Law of Queensland Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Australian Competition and Consumer Commission v Kritharas (2000) 105 FCR 444; [2000] FCA 1442 Australian Competition and Consumer Commission v Black on White Pty Ltd (2004) 138 FCR 314; [2004] FCA 363 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 Coventry v Charter Pacific Corporation Limited (2005) 227 CLR 234; [2005] HCA 67 Director General, Department of Services, Technology & Administration v Veall (No. 6) [2012] NSWSC 1118 Redmond Family Holdings v GC Access Pty Ltd [2016] NSWSC 796 Category: Principal judgment Parties: Lewy David Pattinson (First Plaintiff) Binna Burra Pty Limited ACN 136 051 226 (Second Plaintiff) Mamaal Pty Limited ACN 128 433 634 (Third Plaintiff) Bellwether Agriculture Pty Limited (In Liquidation) (First Defendant) Kenneth Allan Richardson (Second Defendant) Christopher Davidson (Third Defendant) Representation: Counsel: TM Faulkner SC with AJ Bulley (Plaintiffs) JK Raftery (Third Defendant)