G & M Borg P/L v NSW Dairy Corp & Anor [2003] NSWSC 382

G & M Borg P/L v NSW Dairy Corp & Anor [2003] NSWSC 382

The Magistrate's conclusion that the payment was voluntary was a factual conclusion open on the evidence: the plaintiff had options, was not going to be put out of business, and deliberately paid compensation to secure and retain additional trade at Franklins Big Fresh. No error of law was shown. The Fair Trading Act claim also failed because, before payment, the plaintiff's solicitors had asserted that the Corporation lacked power to demand payment, and the plaintiff paid to secure a certificate of registration for commercial advantage rather than in reliance on any representation by the Corporation.

Jurisdiction
Australia
Judgment Date
08 May 2003
Procedural Posture
Appeal From Local Court Judgment / Appeal Under S 69(2) of the Local Courts (civil Claims) Act 1970 (nsw) Alleging Error of Law
Outcome
Appeal dismissed; Local Court decision affirmed; summons dismissed; plaintiff ordered to pay defendants' costs.
Legal Topics
['appeal on Question of Law' 'money Paid Under Compulsion' 'voluntary Payment' 'misleading or Deceptive Conduct' 'milk Distribution Regulation']
['administrative Law' 'restitution' 'consumer Protection' 'civil Procedure'] ['appeal on Question of Law' 'money Paid Under Compulsion' 'voluntary Payment' 'misleading or Deceptive Conduct' 'milk Distribution Regulation']

Case Brief

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Procedural Posture

Appeal From Local Court Judgment / Appeal Under S 69(2) of the Local Courts (civil Claims) Act 1970 (nsw) Alleging Error of Law

Legal Issues

  1. 1 ["Whether the Magistrate erred in law by holding that the plaintiff's payment of compensation to the second defendant was voluntary in the relevant legal sense." "Whether the Magistrate erred in law by failing to find that the first defendant's conduct breached s 42 of the Fair Trading Act 1987 (NSW)." 'Whether the plaintiff suffered loss entitling it to compensation under the Fair Trading Act 1987 (NSW).']

Ratio Decidendi

The Magistrate's conclusion that the payment was voluntary was a factual conclusion open on the evidence: the plaintiff had options, was not going to be put out of business, and deliberately paid compensation to secure and retain additional trade at Franklins Big Fresh. No error of law was shown. The Fair Trading Act claim also failed because, before payment, the plaintiff's solicitors had asserted that the Corporation lacked power to demand payment, and the plaintiff paid to secure a certificate of registration for commercial advantage rather than in reliance on any representation by the Corporation.

Court Disposition

Appeal dismissed; Local Court decision affirmed; summons dismissed; plaintiff ordered to pay defendants' costs.

Orders

  • ['The decision of Reiss LCM dated 16 July 2002 is affirmed.' 'The appeal is dismissed.' 'The summons is dismissed.' "The plaintiff is to pay the defendants' costs as agreed or assessed."]