Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45

Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45

Order 10 went beyond the scope of s 239(1) of the Australian Consumer Law because it required Swishette and Letore, third parties not engaged or involved in the contravening conduct, to apply trust property in which Mr Laski had no legal or beneficial interest to refund client moneys. The proceeds of sale were held by Swishette as trustee under a genuine discretionary trust, and s 239 and s 243 did not authorise the Court to disregard the trust or the trustee's obligations merely because Mr Laski controlled the corporate trustee and was appointor and a beneficiary.

Jurisdiction
Australia
Judgment Date
15 March 2017
Procedural Posture
Appeal and Application for Extension of Time Within Which to Seek Leave to Appeal / Full Court Appeal From Orders Made in Australian Competition and Consumer Commission V Clinica Internationale Pty Ltd (no 2), (no 3) and (no 4)
Outcome
The appeal by Swishette was allowed. Letore was granted an extension of time, granted leave to appeal, and its appeal was allowed.
Legal Topics
['non Party Redress Orders Under S 239 of the Australian Consumer Law' 'power to Make Orders Against Third Parties' 'discretionary Trust Property' 'freezing Orders' 'extension of Time and Leave to Appeal']
['consumer Law' 'trusts' 'corporations' 'appellate Procedure'] ['non Party Redress Orders Under S 239 of the Australian Consumer Law' 'power to Make Orders Against Third Parties' 'discretionary Trust Property' 'freezing Orders' 'extension of Time and Leave to Appeal']

Case Brief

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Procedural Posture

Appeal and Application for Extension of Time Within Which to Seek Leave to Appeal / Full Court Appeal From Orders Made in Australian Competition and Consumer Commission V Clinica Internationale Pty Ltd (no 2), (no 3) and (no 4)

Legal Issues

  1. 1 ['Whether s 239 of the Australian Consumer Law empowered the Court to make an order requiring third parties not engaged or involved in contravening conduct to apply trust property to refund non-party consumers.' 'Whether proceeds of sale held by Swishette as trustee of a discretionary trust could be treated as property of Mr Laski for the purposes of an order under s 239.' 'Whether Letore, as a discretionary beneficiary of the Trust, could be subjected to orders under s 239.']

Ratio Decidendi

Order 10 went beyond the scope of s 239(1) of the Australian Consumer Law because it required Swishette and Letore, third parties not engaged or involved in the contravening conduct, to apply trust property in which Mr Laski had no legal or beneficial interest to refund client moneys. The proceeds of sale were held by Swishette as trustee under a genuine discretionary trust, and s 239 and s 243 did not authorise the Court to disregard the trust or the trustee's obligations merely because Mr Laski controlled the corporate trustee and was appointor and a beneficiary.

Court Disposition

The appeal by Swishette was allowed. Letore was granted an extension of time, granted leave to appeal, and its appeal was allowed.

Orders

  • ['VID 303 of 2016: The appeal be allowed.' 'VID 303 of 2016: Paragraphs 10 to 17 of the orders made on 23 March 2016 in proceeding VID 252 of 2015 and the direction made pursuant to paragraph 10 of those orders be set aside.' "VID 303 of 2016: All of the funds held in the respondent's solicitors' trust account,...