Brudenell v Gaygen Fern Pty Ltd

[2002] VSCA 71

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › New arguments on appeal
3. › Point not taken below
4. › Whether appellant entitled to raise causation argument for first time on appeal
5. › Whether evidence could have been called to meet the point
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Damages
4. › Measure of damages under Trade Practices Act 1974 (Cth)
5. › Whether damages for misleading conduct may coincide with contractual loss
6. › Trade Practices Act 1974 (Cth), ss 52, 75B, 82, 87(1A), 87(1C)
1. Trade Practices
2. › Misleading or deceptive conduct
3. › Remedies
4. › Orders under s 87
5. › Whether express pleading of s 87(1A) required
6. › Whether s 87(1C) permits independent application
7. › Trade Practices Act 1974 (Cth), ss 87(1A), 87(1C)
1. Practice and Procedure
2. › Pleading
3. › Merger of causes of action
4. › Whether entry of default judgment for debt against company merged alternative statutory claims against individual defendant

Quick Take

A party cannot raise for the first time on appeal a causation argument regarding the measure of damages under the Trade Practices Act where the point was not taken below and evidence could have been called to meet it. Damages under the TPA may in certain circumstances coincide with contractual loss. Express pleading of s 87(1A) is not required where proceedings originated in the Magistrates' Court using prescribed forms, and s 87(1C) permits an application under s 87(1A) independently of any existing proceeding under Part VI.