Cortem SpA v Controlmatic Pty Ltd [2010] FCA 852

Cortem SpA v Controlmatic Pty Ltd [2010] FCA 852

Controlmatic Pty Ltd, directed and wholly controlled by Mr Venuti, engaged in misleading or deceptive conduct and made false representations under ss 52 and 53 of the Trade Practices Act by selling Australian-made goods as Cortem’s products. Mr Venuti is personally liable as an accessory under s 75B, being knowingly concerned in and responsible for the conduct. Damages are awarded to Cortem equal to lost profits from those sales. Injunction granted restraining Mr Venuti from involvement in similar corporate conduct. Restitution claim for certification work fails for lack of proof and because the contract excluded compensation for time. Mr Venuti’s claim for defective goods under...

Parties
Applicant/cross Respondent: Cortem SpA; First Respondent/first Cross Claimant: Controlmatic Pty Ltd (ACN 124 091 032); Second Respondent/second Cross Claimant: Giuseppe Venuti
Jurisdiction
Australia
Judgment Date
13 August 2010
Procedural Posture
Commercial—distributor/principal Disputes; Cross Claim for Remuneration and Defective Goods / Judgment After Trial
Outcome
Substantially in favour of Cortem for principal claim; Mr Venuti partly succeeds on cross-claim for specific defective stock.
Legal Topics
Misleading or Deceptive Conduct, False Representations in Trade or Commerce, Passing Off, Directors’ Accessory Liability, Remedies—damages & Injunctions, Restitution for Unjust Enrichment, Defective Goods and Warranty, Application of Vienna Convention
Trade Practices Tort (passing Off) Restitution Sale of Goods Misleading or Deceptive Conduct False Representations in Trade or Commerce Passing Off Directors’ Accessory Liability +4 more

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Parties

Cortem SpA

Applicant/cross Respondent

Controlmatic Pty Ltd (ACN 124 091 032)

First Respondent/first Cross Claimant

Giuseppe Venuti

Second Respondent/second Cross Claimant

Procedural Posture

Commercial—distributor/principal Disputes; Cross Claim for Remuneration and Defective Goods / Judgment After Trial

Legal Issues

  1. 1 Whether the distribution of locally-manufactured goods as those of an international principal amounts to misleading or deceptive conduct or passing off.
  2. 2 Whether the director of a company can be personally liable as an accessory under s 75B of the Trade Practices Act.
  3. 3 Whether the distributor is entitled to remuneration/reimbursement for work securing product certification under TestSafe and/or by way of unjust enrichment/restitution.

Ratio Decidendi

Controlmatic Pty Ltd, directed and wholly controlled by Mr Venuti, engaged in misleading or deceptive conduct and made false representations under ss 52 and 53 of the Trade Practices Act by selling Australian-made goods as Cortem’s products. Mr Venuti is personally liable as an accessory under s 75B, being knowingly concerned in and responsible for the conduct. Damages are awarded to Cortem equal to lost profits from those sales. Injunction granted restraining Mr Venuti from involvement in similar corporate conduct. Restitution claim for certification work fails for lack of proof and because the contract excluded compensation for time. Mr Venuti’s claim for defective goods under...

Court Disposition

Substantially in favour of Cortem for principal claim; Mr Venuti partly succeeds on cross-claim for specific defective stock.

Orders

  • The second respondent (Mr Venuti) is restrained from being involved in certain misleading conduct by trading corporations as set out in the schedule.
  • Mr Venuti to pay damages of $222,558.18 to Cortem under s 82 Trade Practices Act.