Vesuvius Australia Pty Limited v V&M Davidovic Pty Limited Obnova Concrete Pty Limited v Vesuvius Australia Pty Limited [2011] NSWSC 876

Vesuvius Australia Pty Limited v V&M Davidovic Pty Limited Obnova Concrete Pty Limited v Vesuvius Australia Pty Limited [2011] NSWSC 876

Obnova's claims failed as s 51AC was inapplicable to its circumstances due to the absence of a transaction between supplier and business consumer within the meaning of the section, s 51AA claims lacked any pleaded special disadvantage or unconscionable advantage, s 52 was not supported by facts of misleading or deceptive conduct, and the restitution claim failed as there was no joint assumption of contract or benefit provided with an expectation of payment. Leave to amend was refused. Proceedings dismissed and costs awarded.

Jurisdiction
Australia
Judgment Date
09 August 2011
Procedural Posture
Notices of Motion in Two Related Proceedings / Ruling on Motions to Dismiss/amend; Final Orders as to Costs
Outcome
Proceedings dismissed; leave to amend refused; costs awarded
Legal Topics
['unconscionable Conduct' 'misleading or Deceptive Conduct' 'restitution' 'leave to Amend' 'costs Orders' 'dismissal of Proceedings']
['commercial Law' 'trade Practices' 'contract Law' 'civil Procedure'] ['unconscionable Conduct' 'misleading or Deceptive Conduct' 'restitution' 'leave to Amend' 'costs Orders' 'dismissal of Proceedings']

Case Brief

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Procedural Posture

Notices of Motion in Two Related Proceedings / Ruling on Motions to Dismiss/amend; Final Orders as to Costs

Legal Issues

  1. 1 ['Whether s 51AC of the Trade Practices Act 1974 (Cth) applies to parties seeking relief' 'Whether s 51AA and s 52 of the Trade Practices Act 1974 (Cth) apply to the conduct alleged' 'Whether a claim for restitution is available given the facts' 'Whether leave to amend should be granted']

Ratio Decidendi

Obnova's claims failed as s 51AC was inapplicable to its circumstances due to the absence of a transaction between supplier and business consumer within the meaning of the section, s 51AA claims lacked any pleaded special disadvantage or unconscionable advantage, s 52 was not supported by facts of misleading or deceptive conduct, and the restitution claim failed as there was no joint assumption of contract or benefit provided with an expectation of payment. Leave to amend was refused. Proceedings dismissed and costs awarded.

Court Disposition

Proceedings dismissed; leave to amend refused; costs awarded

Orders

  • ["In matter 2010/84991, plaintiff's notice of motion filed on 22 July 2011 dismissed with costs, costs to be assessed forthwith." "In matter 2011/210525, orders in accordance with prayers 1 and 3 of defendant's notice of motion filed on 25 July 2011, including dismissal of proceedings and costs attributed to Mr...