CCL Secure Pty Ltd v Berry [2019] FCAFC 81

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

The Full Court held that it was open to the primary judge to find that the Renewal Representation was made and that this was misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth), and that Dr Berry relied on it in signing the termination letter. It was not open to find that the pleaded Second Representation, or a materially similar specific representation about execution of a partnership agreement, was made. The damages assessment was erroneous because statutory compensation required a counterfactual assessment of what would have happened absent the contravening conduct; on that counterfactual, the Agency Agreement would have terminated on 30 June 2008, so...

Jurisdiction
Australia
Judgment Date
24 May 2019
Procedural Posture
Appeal / Full Court Appeal From Berry V CCL Secure Pty Ltd [2017] FCA 1546 and Berry V CCL Secure Pty Ltd (no 2) [2018] FCA 1351
Outcome
Appeal allowed in part; liability for misleading or deceptive conduct based on the Renewal Representation upheld, but the damages award was to be reduced and Order 2 made by the primary judge on 17 August 2018 was set aside.
Legal Topics
['misleading or Deceptive Conduct Under S 52 of the Trade Practices Act 1974 (cth)' 'statutory Compensation Under S 82 of the Trade Practices Act 1974 (cth)' 'appellate Review of Factual and Credit Findings' 'oral Representations' 'counterfactual Assessment of Loss' 'agency Agreement Termination']
['trade Practices' 'damages' 'evidence' 'commercial and Corporations'] ['misleading or Deceptive Conduct Under S 52 of the Trade Practices Act 1974 (cth)' 'statutory Compensation Under S 82 of the Trade Practices Act 1974 (cth)' 'appellate Review of Factual and Credit Findings' 'oral Representations' 'counterfactual Assessment of Loss' 'agency Agreement Termination']

Case Brief

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Procedural Posture

Appeal / Full Court Appeal From Berry V CCL Secure Pty Ltd [2017] FCA 1546 and Berry V CCL Secure Pty Ltd (no 2) [2018] FCA 1351

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that two oral representations were conveyed by Mr Chapman to Dr Berry at the February Meeting.' 'Whether findings of fact and credit, including findings relating to fraud and dishonest conduct, justified appellate intervention.' 'Whether Dr Berry relied on misleading or deceptive conduct in signing the termination letter.' 'Whether the primary judge erred in assessing statutory compensation by reference to continuation of the Agency Agreement until 20 May 2018.' 'What termination date should be assumed in the counterfactual for assessing compensation under s 82 of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

The Full Court held that it was open to the primary judge to find that the Renewal Representation was made and that this was misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth), and that Dr Berry relied on it in signing the termination letter. It was not open to find that the pleaded Second Representation, or a materially similar specific representation about execution of a partnership agreement, was made. The damages assessment was erroneous because statutory compensation required a counterfactual assessment of what would have happened absent the contravening conduct; on that counterfactual, the Agency Agreement would have terminated on 30 June 2008, so...

Court Disposition

Appeal allowed in part; liability for misleading or deceptive conduct based on the Renewal Representation upheld, but the damages award was to be reduced and Order 2 made by the primary judge on 17 August 2018 was set aside.

Orders

  • ['The appeal be allowed in part.' 'Order 2 made by the primary judge on 17 August 2018 be set aside.' 'By 4pm on 31 May 2019, the parties file an agreed minute of orders identifying the further orders necessary to dispose of all issues on the appeal so as to reflect these reasons, or failing agreement, a minute of...