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ARTICLE · 18 MARCH 2012

PERPETUAL TRUSTEE COMPANY LTD v MILANEX PTY LTD (IN LIQUIDATION) [2011] NSWCA 36

DLA Piper Australia
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A defence of contributory negligence was found not available in a claim for damages from a breach of s42 FTA (NSW).

AustraliaAntitrust/Competition Law
James Morse
James Morse
Lindsay Joyce
Lindsay Joyce

Snapshot

Notwithstanding years of industry practice to the contrary, the New South Wales Court of Appeal has found that a defence of contributory negligence is not available in respect of a claim for damages arising as a result of a breach (or contravention) of section 42 of the Fair Trading Act 1987 (NSW) (FTA).

Please note that, for the purposes of this paper, reference will be made to the relevant provisions of the FTA and the Trade Practices Act 1974 (Cth) (TPA) prior to 1 January 2011 unless expressly stated otherwise. This is because these are the provisions discussed in case law to date, noting that the consumer protection amendments that took effect from 1 January 2011 (in the form of the Competition and Consumer Act 2010 (Cth) (CCA)) only apply to acts or omissions that occurred from that date.

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