Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd

[2008] NSWCA 39

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Onus of proof
3. › Proof of negative proposition
4. › Where defendant has greater means to produce evidence
5. › Whether evidential onus shifts to defendant
6. › Whether plaintiff's evidence must make negative proposition more likely than not before onus shifts
1. Trade Practices
2. › Misleading and deceptive conduct
3. › False representations
4. › Whether representation that applicator was 'approved' was proved to be false
5. › Whether plaintiff discharged onus of proof
6. › Fair Trading Act 1987 (NSW), ss 42, 44, 50
7. › Trade Practices Act 1974 (Cth), ss 52, 53, 55
1. Trade Practices
2. › Misleading and deceptive conduct
3. › Damages
4. › Proof of loss
5. › Whether loss caused by absence of warranty where warranty would not have covered the damage suffered
1. Contract
2. › Formation
3. › Collateral contract
4. › Agency
5. › Whether distributor authorised to enter contracts on manufacturer's behalf
6. › Distinction between authority to communicate information and authority to contract

Quick Take

Before an evidential onus shifts to a defendant, the plaintiff must adduce evidence sufficient to make the negative proposition more likely than not true if accepted as the only evidence on the topic; evidence equally consistent with the proposition being true or not true is insufficient. A distributor authorised to communicate information about approved applicators and distribute brochures does not thereby have authority to enter contracts on behalf of the manufacturer. Proof of loss is essential for damages claims under ss 42, 44 and 50 of the Fair Trading Act 1987 (NSW) and ss 52, 53 and 55 of the Trade Practices Act 1974 (Cth), and where a warranty would not have covered the damage actually suffered, no actionable loss is established.