Pollock v Hicks [2015] NSWCA 122

Pollock v Hicks [2015] NSWCA 122

The appeal was allowed because the primary judge applied the wrong test for accessorial liability by treating Ms Pollock as liable because she was part and parcel of the enterprise, rather than asking whether she had actual knowledge of the representations made by Mr Pollock and of the facts making them false or misleading or unconscionable. There were no findings, and no evidentiary basis for finding, that Ms Pollock knew of the 2005 representations or the relevant facts. The accessorial liability finding under the federal legislation, and the analogous contention under s 61 of the Fair Trading Act 1987 (NSW), therefore could not stand.

Jurisdiction
Australia
Judgment Date
08 May 2015
Procedural Posture
Civil Appeal From District Court Judgment Concerning Statutory Misleading Conduct, Unconscionable Conduct and Accessorial Liability / Court of Appeal Decision on Appeal From Orders of Robison DCJ Made on 12 June 2014
Outcome
Appeal allowed; District Court orders against Ms Pollock set aside; judgment entered for the second defendant against the plaintiff.
Legal Topics
['false or Misleading Representations' 'unconscionable Conduct' 'accessorial Liability' 'involvement in a Contravention' 'procedural Fairness to Unrepresented Litigants' 'transitional Application of Consumer Legislation']
['trade and Commerce' 'consumer Law' 'civil Procedure'] ['false or Misleading Representations' 'unconscionable Conduct' 'accessorial Liability' 'involvement in a Contravention' 'procedural Fairness to Unrepresented Litigants' 'transitional Application of Consumer Legislation']

Case Brief

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Procedural Posture

Civil Appeal From District Court Judgment Concerning Statutory Misleading Conduct, Unconscionable Conduct and Accessorial Liability / Court of Appeal Decision on Appeal From Orders of Robison DCJ Made on 12 June 2014

Legal Issues

  1. 1 ["Whether Ms Pollock was involved in Mr Pollock's alleged false or misleading and unconscionable conduct within the meaning of s 75B of the Trade Practices Act 1974 (Cth) or s 61 of the Fair Trading Act 1987 (NSW)." 'Whether the primary judge applied the correct legal test for accessorial liability.' 'Whether there was evidence that Ms Pollock knew of the representations made by Mr Pollock to Mr Hicks and the facts making them false or misleading or unconscionable.' 'Whether Ms Pollock was denied procedural fairness as an unrepresented litigant who had not personally received the amended statement of claim until the first day of hearing.']

Ratio Decidendi

The appeal was allowed because the primary judge applied the wrong test for accessorial liability by treating Ms Pollock as liable because she was part and parcel of the enterprise, rather than asking whether she had actual knowledge of the representations made by Mr Pollock and of the facts making them false or misleading or unconscionable. There were no findings, and no evidentiary basis for finding, that Ms Pollock knew of the 2005 representations or the relevant facts. The accessorial liability finding under the federal legislation, and the analogous contention under s 61 of the Fair Trading Act 1987 (NSW), therefore could not stand.

Court Disposition

Appeal allowed; District Court orders against Ms Pollock set aside; judgment entered for the second defendant against the plaintiff.

Orders

  • ['Appeal allowed.' 'Set aside orders 1 and 2 made by Robison DCJ on 12 June 2014.' 'In lieu thereof order: judgment for the second defendant against the plaintiff.' "In lieu thereof order: the plaintiff to pay the second defendant's costs as agreed or assessed." "Respondent to pay the appellant's costs in this...