This is an appeal from a decision of the Magistrates’ Court at Melbourne on 8 May 2009 dismissing a claim by the appellant (‘Structured’) for damages under s 159 of the Fair Trading Act 1985 (‘the FTA’) and s 82 of the Trade Practices Act 1974 (Cth) (‘the TPA’) against the first respondent (‘Ms Bennett’). Structured sought damages from Ms Bennett for her alleged misleading or deceptive conduct in breach of s 9 of the FTA and s 52 of the TPA, respectively.

CONTRACT – Penalties – Applicable test in deciding whether liquidated damages clauses in hire purchase agreements were penalties – Whether test applied correctly – Absence of formula calculating net loss, lack of difficulty in estimating net loss, lack of relationship between pre-estimates of damages caused by breach and amounts payable indicated that the clauses were penalties.

DEFAMATION – pleading – fair comment – whether the defendants had pleaded the facts supporting the defence of fair comment.

DEFAMATION – pleading - fair comment - ruling made on 6 November 2009 that facts particularised by the defendant did not support the defence of fair comment – defence amended – whether amendments particularised facts supporting the defence of fair comment.

The plaintiffs seek relief in the nature of certiorari to quash orders made by the Magistrates’ Court at Sunshine on 28 February 2008 and 4 March 2008. In those proceedings the first named plaintiff, Brimbank Automotive Pty Ltd (“Brimbank”), and the second plaintiff, Jeffrey Moloney (“Moloney”), were defendants to a claim brought against them by the first defendant to these proceedings, Patricia Murphy (“Murphy”).

Credit – application to strike out/dismiss claim – whether Consumer Credit Code applies – whether business purpose declaration ineffective – whether doctrine of non est factum applies – relevant principles on strike out application where many aspects of claim contested – Consumer Credit (Victoria) Code ss6, 11, 70 and 176 and Sched 1;Consumer Credit (Victoria) Regulations r10; Victorian Civil and Administrative Tribunal Act 1998 s75

Contract - Agreement to provide consulting services to prepare a company for a trade sale - Whether plaintiff entitled to recover for work performed - Alleged representations constituted by plaintiffs silence on certain matters - Consultant working on project convicted of insider trading and serving a sentence of imprisonment by periodic detention - Plaintiff not the holder of an Australian financial services licence.

Credit - application to str ike out/dismiss claim - whether Consumer Credit Code applies - whether business purpose declaration ineffective - whether doctrine of non est factum applies -relevant pr inciples on str ike out application where many aspects of claim contested

The plaintiff (“Allforks”) claims against the defendant on guarantees the defendant executed on 24 January 2006 (the “guarantees”). The guarantees related to the obligations of a company known as Priority Road Express Pty Ltd (“PRE”) pursuant to four hire agreements (the “hire agreements”) entered into between the plaintiff and PRE. The subject of the hire agreements were four forklift trucks (the” forklifts”) utilised by PRE in its transportation business.