http://www.austlii.edu.au/au/cases/vic/VSC/2013/327.html
TRADE PRACTICES – Misleading or deceptive conduct – Representations as to present fact and future matters – Loan agreement – Representation that a loan could be “called up” at any time – Representation that funds in alternative facility could be drawn down to fund repayment of the loan – Whether a reasonable person would have understood representations as conveying that loan would be repaid immediately upon demand – Whether representations implied a capacity to repay – Failure to repay loan – Whether defendants had a reasonable basis for making representations – Whether representations misleading or deceptive – Whether plaintiffs induced to approve loan in reliance on the representations – Trade Practices Act 1974 (Cth), ss 51A, 52, and 82 – Fair Trading Act 1999 (Vic), ss 4, 9, and 159 – Krakowski v Eurolynx Properties (1995) 183 CLR 563 applied – Award of damages.
TRADE PRACTICES – Misleading or deceptive conduct – Accessorial liability – Involvement in contraventions – Knowledge – Trade Practices Act 1974 (Cth), s 75B – Fair Trading Act 1999 (Vic), s 145 – Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 applied.
CORPORATIONS – Director’s Duties – Non-executive directors – Care and diligence – Good faith – Proper purpose – Corporations Act 2001 (Cth), ss 180 and 181 – No breach of duty because company acting as agent not principal.
AGENCY – Joint venture – Whether nominee company merely agent for joint venture parties – Express denial of agency relationship in joint venture agreement and management agreement – Whether relationship was in truth one of principal and agent – Consideration of relevant principles – Relevance of control – Implied agency – Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (2013) 296 ALR 465.
EVIDENCE – Relevance of pleading in prior proceeding to assessment of credit – Court entitled to assume that the pleading reflects instructions given by the defendants to their legal practitioners – Requirement to put one’s name to a pleading reflects duty imposed on practitioners to be satisfied pleading has a proper basis – Unnecessary to consider whether pleading amounted to an admission – Evidence Act 2008 (Vic), ss 81 and 87 – Civil Procedure Act 2010 (Vic), s 18.