Pave Wealth Services Pty Ltd v Danielle Jones as executrix of the estate of the Late Michael Frederick Jones

[2021] WASCA 7

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Consumer Law
2. › Misleading or deceptive conduct
3. › Personal liability of director or employee
4. › Whether natural person acting in representative capacity personally liable for same conduct as corporation
5. › Whether capacity as director divests personal liability
6. › Fair Trading Act 1987 (WA), s 10(1)
7. › Trade Practices Act 1974 (Cth), s 52
1. Consumer Law
2. › Misleading or deceptive conduct
3. › Representation as to present fact
4. › Client base comprising recurring revenue
5. › Whether representation false and misleading
6. › Quantification of damages
7. › Difference between price paid and value of client base
1. Practice and Procedure
2. › Pleadings
3. › Joint list of issues
4. › Whether parties may modify pleaded case by adoption of joint list of issues
5. › Whether primary judge entitled to resolve case on basis of joint list of issues rather than pleadings alone
1. Appeal
2. › Cross-appeal
3. › Challenge to factual findings
4. › Failure to comply with practice direction requiring schedule of evidence
5. › Standard of appellate intervention on factual findings

Quick Take

A natural person who personally makes a false representation in trade or commerce is personally liable under s 10(1) of the Fair Trading Act 1987 (WA) notwithstanding that the person was acting in their capacity as director, employee or agent of a company. The relevant question is whether the natural person engaged in the conduct, not the capacity in which they did so. However, merely ministerial acts (such as a company secretary on-sending an announcement at the direction of a director) will not attract personal liability. Where parties adopt a joint list of issues that modifies the pleaded case, the primary judge is entitled to resolve the case on that basis.