Showtime Touring Group Pty Ltd v Mosley Touring Inc [2013] NSWCA 53

Showtime Touring Group Pty Ltd v Mosley Touring Inc [2013] NSWCA 53

The Amended Statement of Claim pleaded facts from which knowledge by Mr Mosley of the alleged representations and their misleading or deceptive character could be inferred, but it did not plead material facts showing that Mr Mosley participated in the misleading or deceptive conduct in Australia. Accordingly, no arguable s 75B cause of action was pleaded against him, although leave to amend should be granted. The primary judge also had power under UCPR r 42.7(2) to order that the earlier costs order be payable forthwith, and no error was shown in making that costs order.

Jurisdiction
Australia
Judgment Date
15 March 2013
Procedural Posture
Interlocutory Applications / Application for Leave to Appeal Against Orders Striking Out an Accessorial Liability Claim and Ordering Costs Payable Forthwith
Outcome
Leave to appeal granted; pleading orders varied to strike out paragraphs [49]-[52] with leave to file an amended claim against the second defendant; appeal otherwise dismissed; applicant/appellant ordered to pay the respondents' costs of the application for leave to appeal and the appeal.
Legal Topics
['defective Pleadings' 'accessorial Liability Under S 75 B of the Trade Practices Act 1974 (cth)' 'misleading or Deceptive Conduct' 'territorial Nexus' 'costs Payable Forthwith Under UCPR R 42.7(2)']
['civil Procedure' 'consumer Law' 'costs'] ['defective Pleadings' 'accessorial Liability Under S 75 B of the Trade Practices Act 1974 (cth)' 'misleading or Deceptive Conduct' 'territorial Nexus' 'costs Payable Forthwith Under UCPR R 42.7(2)']

Case Brief

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Procedural Posture

Interlocutory Applications / Application for Leave to Appeal Against Orders Striking Out an Accessorial Liability Claim and Ordering Costs Payable Forthwith

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim pleaded material facts demonstrating that Mr Mosley knew of the representations and that they were misleading or deceptive.' 'Whether a claim for accessorial liability under s 75B of the Trade Practices Act 1974 (Cth) required pleading conduct by the alleged accessory in Australia.' 'Whether UCPR r 42.7(2) empowered a judge other than the judge who made the original costs order to order that costs be paid forthwith.']

Ratio Decidendi

The Amended Statement of Claim pleaded facts from which knowledge by Mr Mosley of the alleged representations and their misleading or deceptive character could be inferred, but it did not plead material facts showing that Mr Mosley participated in the misleading or deceptive conduct in Australia. Accordingly, no arguable s 75B cause of action was pleaded against him, although leave to amend should be granted. The primary judge also had power under UCPR r 42.7(2) to order that the earlier costs order be payable forthwith, and no error was shown in making that costs order.

Court Disposition

Leave to appeal granted; pleading orders varied to strike out paragraphs [49]-[52] with leave to file an amended claim against the second defendant; appeal otherwise dismissed; applicant/appellant ordered to pay the respondents' costs of the application for leave to appeal and the appeal.

Orders

  • ['Grant the applicant leave to appeal.' 'Direct the applicant/appellant to file a Notice of Appeal in terms of the Draft Notice of Appeal dated 12 December 2011 within 7 days of the date hereof.' 'Vary Order 1 of the orders made by the primary judge on 28 November 2011 by deleting subpars (b) and (c) thereof.' 'Make...