Dib Group Pty Ltd v Ventouris Enterprises Pty Ltd [2011] NSWCA 300

Dib Group Pty Ltd v Ventouris Enterprises Pty Ltd [2011] NSWCA 300

The appeal failed because, on the proper construction of Fair Trading Act 1987 (NSW), s 41(2), the appellants bore the legal or persuasive onus of establishing reasonable grounds for the future representations and did not discharge that onus. The evidence did not prove that the loan security or E-Style's financial position provided reasonable grounds for the representations, including any representation that the appellants would ensure repayment. The primary judge's findings that Ms Ventouris relied on the representations and that the representations caused Enterprises' loss were open and disclosed no appealable error. Because the appellants failed even on the assumption that they could...

Jurisdiction
Australia
Judgment Date
21 September 2011
Procedural Posture
Appeal / Court of Appeal of the Supreme Court of New South Wales From Ventouris Enterprises Pty Ltd V Dib Group Pty Ltd [2010] NSWSC 963
Outcome
Appeal dismissed with costs.
Legal Topics
['representations as to Future Matters' 'reasonable Grounds' 'fair Trading Act 1987 (nsw), S 41' 'trade Practices Act 1974 (cth), S 51 A' 'reliance' 'causation' 'leave to Challenge Authority']
['trade and Commerce' 'consumer Law' 'misleading or Deceptive Conduct'] ['representations as to Future Matters' 'reasonable Grounds' 'fair Trading Act 1987 (nsw), S 41' 'trade Practices Act 1974 (cth), S 51 A' 'reliance' 'causation' 'leave to Challenge Authority']

Case Brief

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Procedural Posture

Appeal / Court of Appeal of the Supreme Court of New South Wales From Ventouris Enterprises Pty Ltd V Dib Group Pty Ltd [2010] NSWSC 963

Legal Issues

  1. 1 ['Whether the appellants had reasonable grounds for representations that a $100,000 loan to E-Style would be a safe investment, would be repaid with interest, and that the appellants would ensure repayment.' 'Whether Fair Trading Act 1987 (NSW), s 41(2) imposes a legal or persuasive onus of proof on the representor.' 'Whether it was necessary to decide whether Sykes v Reserve Bank of Australia (1998) 88 FCR 511, City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94 and Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 should not be followed.' 'Whether the primary judge erred in finding reliance by Enterprises through Ms Ventouris.' "Whether the primary judge erred in finding causation between the misleading or deceptive conduct and Enterprises' loss."]

Ratio Decidendi

The appeal failed because, on the proper construction of Fair Trading Act 1987 (NSW), s 41(2), the appellants bore the legal or persuasive onus of establishing reasonable grounds for the future representations and did not discharge that onus. The evidence did not prove that the loan security or E-Style's financial position provided reasonable grounds for the representations, including any representation that the appellants would ensure repayment. The primary judge's findings that Ms Ventouris relied on the representations and that the representations caused Enterprises' loss were open and disclosed no appealable error. Because the appellants failed even on the assumption that they could...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The question of the correctness of Sykes v Reserve Bank of Australia (1998) 88 FCR 511; City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94; and Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 not being necessary to resolve for the resolution of the appeal, leave to argue that they should not...