Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139

Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139

The appeal was dismissed because Mr Fitzgerald identified no basis for disturbing the primary judge's factual findings. On those findings, the payment practice required Projects to invoice Deloitte for amounts properly payable to contractors and to pay those amounts from the Trust Account to contractors. Projects' invoices conveyed false representations, constituted misleading or deceptive conduct in trade or commerce, and caused Deloitte's loss. Mr Fitzgerald knew of the payment practice, directed or procured over-invoicing and payments from the Trust Account for other purposes, and was therefore involved in the contraventions within s 2 and liable under s 236 of the Australian Consumer...

Jurisdiction
Australia
Judgment Date
21 June 2017
Procedural Posture
Appeal From a Supreme Court of NSW Equity Division Commercial List Decision Concerning Misleading or Deceptive Conduct and a Payment Practice for Project Management Services / Court of Appeal Decision on Notice of Appeal Dated 13 December 2016
Outcome
The notice of appeal dated 13 December 2016 was dismissed and the appellant was ordered to pay the respondent's costs of the appeal.
Legal Topics
['misleading or Deceptive Conduct Under S 18 of the Australian Consumer Law' 'liability of a Person Involved in a Contravention Under Ss 2 and 236 of the Australian Consumer Law' 'contractual Payment Practice' 'appellate Review of Factual Findings']
['trade Practices and Consumer Law' 'contract' 'appeal and New Trial'] ['misleading or Deceptive Conduct Under S 18 of the Australian Consumer Law' 'liability of a Person Involved in a Contravention Under Ss 2 and 236 of the Australian Consumer Law' 'contractual Payment Practice' 'appellate Review of Factual Findings']

Case Brief

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Procedural Posture

Appeal From a Supreme Court of NSW Equity Division Commercial List Decision Concerning Misleading or Deceptive Conduct and a Payment Practice for Project Management Services / Court of Appeal Decision on Notice of Appeal Dated 13 December 2016

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that Deloitte and Projects agreed to a payment practice whereby monies paid by Deloitte into the Trust Account would be used only for payment of amounts owing to contractors and consultants' 'Whether Projects engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law by over-invoicing Deloitte and making representations in its invoices' 'Whether Deloitte relied on the representations or otherwise suffered loss because of the contravening conduct for the purposes of s 236 of the Australian Consumer Law' 'Whether Mr Fitzgerald was involved in the contraventions within the meaning of s 2 of the Australian Consumer Law' "Whether the Court of Appeal should disturb the primary judge's factual findings"]

Ratio Decidendi

The appeal was dismissed because Mr Fitzgerald identified no basis for disturbing the primary judge's factual findings. On those findings, the payment practice required Projects to invoice Deloitte for amounts properly payable to contractors and to pay those amounts from the Trust Account to contractors. Projects' invoices conveyed false representations, constituted misleading or deceptive conduct in trade or commerce, and caused Deloitte's loss. Mr Fitzgerald knew of the payment practice, directed or procured over-invoicing and payments from the Trust Account for other purposes, and was therefore involved in the contraventions within s 2 and liable under s 236 of the Australian Consumer...

Court Disposition

The notice of appeal dated 13 December 2016 was dismissed and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

  • ['The notice of appeal dated 13 December 2016 be dismissed.' "The appellant pay the respondent's costs of the appeal."]