TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9

TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9

The awards for general and aggravated damages for trespass were not excessive, but the award for exemplary damages was manifestly excessive and should be reduced. There was double counting in damages for misleading and deceptive conduct and trespass, necessitating reduction. The conduct was in trade or commerce as it engaged the business of the representee. The s 65A exemption did not apply to preparatory misrepresentations. Section 52 and s 82 of the Trade Practices Act are not to be read down to preclude claims overlapping with defamation law unless Parliament so prescribes.

Parties
Appellant: TCN Channel Nine Pty Ltd; Appellant: Ben Fordham; Respondent: Ilvariy Pty Ltd; Respondent: Frederick Robert Cox
Jurisdiction
Australia
Judgment Date
19 February 2008
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal allowed in part
Legal Topics
Trespass to Property, Damages, Exemplary Damages, Aggravated Damages, Misleading and Deceptive Conduct, Trade Practices Act, Double Counting, Defamation, Suitors' Fund Act, Coherence Between Statutory and Common Law
Torts Consumer Law Media Law Trespass to Property Damages Exemplary Damages Aggravated Damages Misleading and Deceptive Conduct +5 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 40 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

TCN Channel Nine Pty Ltd

Appellant

Ben Fordham

Appellant

Ilvariy Pty Ltd

Respondent

Frederick Robert Cox

Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether damages awarded for trespass (general, aggravated, exemplary) were excessive or overlapped (double counting) with damages for misleading and deceptive conduct
  2. 2 Whether the conduct occurred 'in trade or commerce' under s 52 of the Trade Practices Act 1974 (Cth)
  3. 3 Whether s 65A of the Trade Practices Act exempted the conduct

Ratio Decidendi

The awards for general and aggravated damages for trespass were not excessive, but the award for exemplary damages was manifestly excessive and should be reduced. There was double counting in damages for misleading and deceptive conduct and trespass, necessitating reduction. The conduct was in trade or commerce as it engaged the business of the representee. The s 65A exemption did not apply to preparatory misrepresentations. Section 52 and s 82 of the Trade Practices Act are not to be read down to preclude claims overlapping with defamation law unless Parliament so prescribes.

Court Disposition

Appeal allowed in part

Orders

  • In par [1075] of the judgment of Smart AJ vary par [2] by substituting $170,000 for $230,000, and vary par [5] by substituting $20,000 for $50,000.
  • The respondents pay half of the appellants' costs of the appeal.