Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 6) [2014] FCA 1035

Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 6) [2014] FCA 1035

The Court found that SensaSlim, by failing to disclose Peter Foster’s involvement as an officer in its Disclosure Document, made representations that were false or misleading in a material particular, in contravention of s 59(2) and s 52(1) of the Trade Practices Act 1974 (Cth). The Court found that Peter Foster and Peter O'Brien were knowingly concerned in or party to these contraventions. The applicant’s present contentions regarding additional or alternative contraventions under s 52(1) based on different factual substrata were not supported by the way the case was pleaded and advanced at trial. Declaratory relief is granted in accordance with these established contraventions.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: SensaSlim Australia Pty Ltd (in liquidation) ACN 140 333 133; Second Respondent: Peter Clarence Foster; Third Respondent: Peter Leslie O'Brien; Fourth Respondent: Adam Troy Adams; Fifth Respondent: Michael Anthony Boyle
Jurisdiction
Australia
Judgment Date
26 September 2014
Procedural Posture
Civil / Declaratory Relief Determination Following Principal Judgment
Outcome
Declarations made regarding contraventions of statutory provisions by SensaSlim and involvement of personal respondents; form of certain proposed declarations refused; utility of declarations affirmed; no final injunctive or penalty orders at this stage.
Legal Topics
Misleading or Deceptive Conduct, False or Misleading Representations, Franchising Code Disclosure, Accessory Liability, Declaratory Relief
Trade Practices Consumer Law Misleading or Deceptive Conduct False or Misleading Representations Franchising Code Disclosure Accessory Liability Declaratory Relief

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Parties

Australian Competition and Consumer Commission

Applicant

SensaSlim Australia Pty Ltd (in liquidation) ACN 140 333 133

First Respondent

Peter Clarence Foster

Second Respondent

Peter Leslie O'Brien

Third Respondent

Adam Troy Adams

Fourth Respondent

Michael Anthony Boyle

Fifth Respondent

Procedural Posture

Civil / Declaratory Relief Determination Following Principal Judgment

Legal Issues

  1. 1 Whether SensaSlim and its officers made false or misleading representations in contravention of statutory provisions
  2. 2 Whether there was misleading or deceptive conduct by SensaSlim and its officers
  3. 3 Whether personal respondents were knowingly concerned in or party to contraventions by SensaSlim

Ratio Decidendi

The Court found that SensaSlim, by failing to disclose Peter Foster’s involvement as an officer in its Disclosure Document, made representations that were false or misleading in a material particular, in contravention of s 59(2) and s 52(1) of the Trade Practices Act 1974 (Cth). The Court found that Peter Foster and Peter O'Brien were knowingly concerned in or party to these contraventions. The applicant’s present contentions regarding additional or alternative contraventions under s 52(1) based on different factual substrata were not supported by the way the case was pleaded and advanced at trial. Declaratory relief is granted in accordance with these established contraventions.

Court Disposition

Declarations made regarding contraventions of statutory provisions by SensaSlim and involvement of personal respondents; form of certain proposed declarations refused; utility of declarations affirmed; no final injunctive or penalty orders at this stage.

Orders

  • Declarations are made as to contraventions by SensaSlim and as to the involvement of certain personal respondents as found in principal judgment;
  • Declarations sought by the applicant in relation to alternative unpleaded factual bases are declined;