Cuzeno Pty Ltd v Powercell Pty Ltd [2000] NSWCA 78

Cuzeno Pty Ltd v Powercell Pty Ltd [2000] NSWCA 78

The cross-appeal was dismissed as Powercell was not permitted to argue the point it relied on because it had not been litigated below and, regardless, was unlikely to succeed. The claim relied on a representation made after the formation of the new arrangement, but no case was made at trial based on such alleged conduct, and permitting the argument would be unfair to the parties and contrary to the procedural conduct of the trial.

Parties
Appellant/cross Respondent: Cuzeno Pty Ltd; Respondent/cross Appellant: Powercell Pty Ltd; Second Cross Defendant: Mr Jabbour
Jurisdiction
Australia
Judgment Date
05 April 2000
Procedural Posture
Cross Appeal / Appeal From District Court; Judgment on Cross Appeal
Outcome
Cross-appeal dismissed with costs
Legal Topics
Misleading or Deceptive Conduct, Breach of Contract, Section 52 Trade Practices Act
Contract Law Trade Practices Misleading or Deceptive Conduct Breach of Contract Section 52 Trade Practices Act

Case Brief

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Parties

Cuzeno Pty Ltd

Appellant/cross Respondent

Powercell Pty Ltd

Respondent/cross Appellant

Mr Jabbour

Second Cross Defendant

Procedural Posture

Cross Appeal / Appeal From District Court; Judgment on Cross Appeal

Legal Issues

  1. 1 Whether Powercell may succeed in cross-appeal alleging misleading and deceptive conduct under section 52 of the Trade Practices Act and section 42 of the Fair Trading Act against Mr Jabbour

Ratio Decidendi

The cross-appeal was dismissed as Powercell was not permitted to argue the point it relied on because it had not been litigated below and, regardless, was unlikely to succeed. The claim relied on a representation made after the formation of the new arrangement, but no case was made at trial based on such alleged conduct, and permitting the argument would be unfair to the parties and contrary to the procedural conduct of the trial.

Court Disposition

Cross-appeal dismissed with costs

Orders

  • Cross-appeal dismissed with costs