New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Trade and commerce


  1. 16/11/2016
    Trade and commerce: contract for sale of business; whether purchaser relied on vendor’s representations concerning the business’ sales figures; bargain struck on basis that price discounted in return for purchaser’s non-reliance on representations; whether representations by silence that earlier owner of the business did not intend to compete with it

    Jewelsnloo Pty Ltd v Sengos  [2016] NSWCA 309
  2. 05/08/2016
    Trade and commerce: partners signed Licence Agreement by which they acquired a licence to conduct a chicken shop business; two partners (claimants) allege a third partner misrepresented the effect of the Licence Agreement; whether the third partner’s statement amounts to the representation alleged by the claimants; whether the third partner’s conduct was misleading or deceptive.

    Choo v Zhang  [2016] NSWCA 193
  3. 21/07/2016
    Trade and commerce: statutory unconscionability; allegations of unconscionable conduct in the sale and marketing of treatments for premature ejaculation and erectile dysfunction; ACCC alleged contraventions of s 51AB of the Trade Practices Act 1974 (Cth) and s 21 of the Australian Consumer Law; primary judge held that claims of unconscionable conduct made out; whether primary judge impermissibly engaged in own fact-finding in relation to medical efficacy of treatments; whether unfair/unreasonable sales pressure may constitute unconscionable conduct; whether individual factors themselves insufficient to constitute unconscionable conduct may together so constitute; undesirable to attempt comprehensive definition of what constitutes unconscionable conduct; no single factor determinative; necessary to consider all the circumstances.
    NRM Corporation Pty Ltd v Australian Competition and Consumer Commission  [2016] FCAFC 98
  4. 04/07/2016
    Trade and commerce: misleading and deceptive conduct; whether appellant represented by submission of tender that it intended to enter into agreement and do what it had promised to do on proper, objective construction of tender conditions; whether respondent engaged in misleading and deceptive conduct by not disclosing information as to number of parking bays in redeveloped car park; whether reasonable expectation that information would be disclosed.
    Secure Parking Pty Ltd v Woollahra Municipal Council  [2016] NSWCA 154
  5. 09/06/2016
    Trade and commerce: whether misleading or deceptive conduct by employee “on behalf of” the appellant; whether employee engaged in the conduct in the course of the corporation’s business, affairs or activities for the purposes of s 84(2) of the Competition and Consumer Act; employee acting in the course of appellant’s business in making false representations.
    Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd  [2016] FCAFC 78
  6. 23/05/2016
    Trade and commerce: misleading or deceptive conduct; appellant alleged respondent failed to disclose alleged consensus within the respondent of intention to proceed to open tender when current lease expired; whether alleged representations were made by respondent; whether representations were misleading or deceptive or likely to mislead or deceive; whether appellant had reasonable expectation of disclosure where parties in commercial negotiations; whether respondent had concluded view of whether binding agreement had been entered; whether appellant relied on non-disclosure; challenge to primary judge’s findings as to credit of witnesses; whether consistent with considering inherent probabilities of competing accounts and objective indicators; loss of opportunity claim by appellant; causation; whether opportunity lost was of some commercial value; whether evidence established respondent would have sold business had it known the true position.
    OXS Pty Ltd v Sydney Harbour Foreshore Authority  [2016] NSWCA 120
  7. 20/05/2016
    Trade and commerce: Trade Practices Act 1974 (Cth) and related legislation; misleading and deceptive conduct; contract expressly excluded retaining walls and gave provisional sums for certain items including rock excavation; builder aware of need for large retaining walls and did not inform principal prior to entry into contract; whether reasonable expectation of disclosure; no complaint by principal contemporaneous with need for retaining walls becoming apparent.
    DCT Projects Pty Limited v Champion Homes Sales Pty Limited  [2016] NSWCA 117
  8. 16/12/2015
    Trade and commerce: customs; customs duty payable by owner of goods; definition of "owner"; freight forwarder entered goods for home consumption as agent for financier; freight forwarder and financier both "owners" and both primarily liable to pay customs duty
    Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd  [2015] NSWCA 402
  9. 11/11/2015
    Trade and commerce: misleading and deceptive conduct; Franchising Code of Conduct; franchise agreement; whether cash flow projection provided prior to entry into the franchise agreement contravened Trade Practices Act 1974 (Cth), s 51AD or s 52; whether any loss or damage suffered by reason of contraventions; no error shown in conclusion of primary judge that no loss or damage suffered by reason of conduct alleged to have been in contravention; appeal dismissed
    JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd  [2015] NSWCA 347
  10. 06/11/2015
    Trade and commerce: consumer law; unconscionable conduct under Competition and Consumer Act 2010 (Cth), s 21; whether supplier acted unconscionably by withdrawing support and ceasing direct supply to distributor and reseller
    TMA Australia Pty Ltd v Indect Electronics & Distribution GmbH  [2015] NSWCA 343