Duxbury v Pierce [2009] FCA 367

Duxbury v Pierce [2009] FCA 367

The second respondent was in default and, as to the sufficiently pleaded allegations in [15] of the amended statement of claim, judgment and relief should be ordered against him. Default judgment was not appropriate against the first respondent because he had appeared, filed a defence, had not been given prior notice of the oral default judgment application, and had maintained his defence. On the evidence, the first respondent was not personally the maker of most representations, which were attributable to EVP Holdings Pty Ltd and/or EVP Recruitment Pty Ltd, but he was liable under s 75B where he participated with knowledge of the essential facts making particular representations or...

Jurisdiction
Australia
Judgment Date
21 April 2009
Procedural Posture
Trade Practices Proceeding Alleging Misleading or Deceptive Conduct and Accessory Liability / Application for Summary/default Judgment and Determination of Liability, With Quantum Adjourned
Outcome
Declarations made and liability orders entered against both respondents; proceeding adjourned for directions on quantum and ancillary issues including costs.
Legal Topics
['misleading or Deceptive Conduct' 'accessory Liability' 'summary Judgment' 'default Judgment' 'representations as to Future Matters' 'loss or Damage']
['trade Practices' 'consumer Protection' 'practice and Procedure'] ['misleading or Deceptive Conduct' 'accessory Liability' 'summary Judgment' 'default Judgment' 'representations as to Future Matters' 'loss or Damage']

Case Brief

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Procedural Posture

Trade Practices Proceeding Alleging Misleading or Deceptive Conduct and Accessory Liability / Application for Summary/default Judgment and Determination of Liability, With Quantum Adjourned

Legal Issues

  1. 1 ['Whether representations regarding joint venture recruitment businesses and the financial position of EVP Holdings Pty Ltd and/or EVP Recruitment Pty Ltd were misleading or deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth).' 'Whether the first respondent was liable under s 75B of the Trade Practices Act 1974 (Cth) for aiding, abetting, counselling or procuring contraventions by EVP Holdings Pty Ltd and/or EVP Recruitment Pty Ltd.' 'Whether summary or default judgment should be entered against the respondents under O 35A of the Federal Court Rules.' 'Whether the applicants suffered loss caused by the contravening conduct within s 82 of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

The second respondent was in default and, as to the sufficiently pleaded allegations in [15] of the amended statement of claim, judgment and relief should be ordered against him. Default judgment was not appropriate against the first respondent because he had appeared, filed a defence, had not been given prior notice of the oral default judgment application, and had maintained his defence. On the evidence, the first respondent was not personally the maker of most representations, which were attributable to EVP Holdings Pty Ltd and/or EVP Recruitment Pty Ltd, but he was liable under s 75B where he participated with knowledge of the essential facts making particular representations or...

Court Disposition

Declarations made and liability orders entered against both respondents; proceeding adjourned for directions on quantum and ancillary issues including costs.

Orders

  • ['Subject to paragraph 2, the first respondent aided, abetted, counselled or procured contraventions of s 52 of the Trade Practices Act 1974 (Cth) by EVP Holdings Pty Ltd and/or EVP Recruitment Pty Ltd as specified for the applicants in paragraph 1 of the declarations.' "Paragraph 1 of the declarations was varied by...