Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor [2012] NSWSC 529

Lovick & Son Developments Pty Ltd & Anor v Doppstadt Australia Pty Ltd & Anor [2012] NSWSC 529

Doppstadt Australia made several representations about the AK430K's ability to handle contamination, suitability for the plaintiffs' landfill and council waste work, remote control operation, lack of problems, fixed electrical faults, parts and country repair support, and technical capacity. On the evidence of the machine's early operation, operator diaries, correspondence with Doppstadt Germany and the absence of established reasonable grounds for future representations, several of those representations were misleading or deceptive and were relied upon by the plaintiffs. Mr Davis was liable for representations he made or was knowingly concerned in, and also under the Fair Trading Act for...

Jurisdiction
Australia
Judgment Date
21 May 2012
Procedural Posture
Principal Judgment in Proceedings Alleging Misleading and Deceptive Conduct Concerning the Sale of a Doppstadt AK430 K Shredder / Liability and Related Issues Determined After Hearing; Further Submissions on Damages Directed
Outcome
Plaintiffs established some misleading and deceptive representations; contributory negligence allegations were not made out; failure to mitigate was established; no separate apportionment for concurrent wrongdoers; damages to be assessed after further submissions.
Legal Topics
['trade Practices Act 1974 (cth) S 52' 'fair Trading Act 1987 (nsw)' 'representations as to Future Matters' 'trade Practices Act 1974 (cth) S 51 A' 'reliance' 'accessorial Liability' 'negligent Misstatement' 'mitigation of Loss' 'contributory Negligence' 'concurrent Wrongdoers']
['trade and Commerce' 'consumer Protection' 'misleading or Deceptive Conduct' 'damages' 'proportionate Liability'] ['trade Practices Act 1974 (cth) S 52' 'fair Trading Act 1987 (nsw)' 'representations as to Future Matters' 'trade Practices Act 1974 (cth) S 51 A' 'reliance' 'accessorial Liability' 'negligent Misstatement' 'mitigation of Loss' 'contributory Negligence' 'concurrent Wrongdoers']

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Procedural Posture

Principal Judgment in Proceedings Alleging Misleading and Deceptive Conduct Concerning the Sale of a Doppstadt AK430 K Shredder / Liability and Related Issues Determined After Hearing; Further Submissions on Damages Directed

Legal Issues

  1. 1 ['Whether Doppstadt Australia or Mr Davis made the alleged oral and documentary representations about the Doppstadt AK430K shredder.' 'Whether established representations were misleading or deceptive, including representations as to future matters under Trade Practices Act 1974 (Cth) s 51A and Fair Trading Act 1987 (NSW) s 41.' 'Whether the plaintiffs relied on the misleading or deceptive representations in purchasing and using the shredder.' "Whether Mr Raymond Davis was liable as a principal or accessory for Doppstadt Australia's misleading or deceptive conduct." 'Whether the plaintiffs were contributorily negligent or failed to mitigate their loss.' 'Whether the plaintiffs or Mr Lovick were concurrent wrongdoers requiring apportionment.' 'What damages should be assessed in light of the findings.']

Ratio Decidendi

Doppstadt Australia made several representations about the AK430K's ability to handle contamination, suitability for the plaintiffs' landfill and council waste work, remote control operation, lack of problems, fixed electrical faults, parts and country repair support, and technical capacity. On the evidence of the machine's early operation, operator diaries, correspondence with Doppstadt Germany and the absence of established reasonable grounds for future representations, several of those representations were misleading or deceptive and were relied upon by the plaintiffs. Mr Davis was liable for representations he made or was knowingly concerned in, and also under the Fair Trading Act for...

Court Disposition

Plaintiffs established some misleading and deceptive representations; contributory negligence allegations were not made out; failure to mitigate was established; no separate apportionment for concurrent wrongdoers; damages to be assessed after further submissions.

Orders

  • ['The parties are allowed 14 days to lodge supplementary damages submissions in light of the reasons.' 'Further directions given.']