Findings made in favour of the plaintiffs — parties to bring in short minutes of order.
Catchwords:
CONSUMER LAW — First plaintiff embarks upon a career change and engages in training to qualify as a mortgage broker — First plaintiff claims first defendant arranged for mentoring of the first plaintiff — First plaintiff claims the first defendant made ownership and investment representations regarding a mortgage broking business (MAP Business) and induced the first plaintiff and his wife (the second plaintiff) to sell properties and transfer proceeds to the first defendant based on a promise of a 50% interest in the mortgage broking business, which were misleading and deceptive in that the first defendant had no such interest to sell — Other claims in relation to breach of mentoring agreement and sales and marketing promises
CONSUMER LAW — Misleading or deceptive conduct — Discussion regarding the operation of the Australian Consumer Law (ACL) as a law of the Commonwealth and as a State “application” law — Discussion of s 6(3)(a) of the Competition and Consumer Act 2010 (Cth) (CCA) — CCA extends the operation of s 18 of the ACL (in addition to certain other parts of the ACL) to persons who are not corporations where the impugned conduct involves the use of postal, telegraphic or telephonic services — The expression “postal, telegraphic or telephonic services” extends to conduct involving the use of the internet
CONSUMER LAW — Misleading or deceptive conduct — Measure of damages — ACL, sections 18 and 236(1)
UNREPRESENTED LITIGANTS — Content of procedural fairness
PLEADINGS — Discussion (obiter) of pleading of claims in fraud and restitution
TRUSTS — Discussion (obiter) regarding intention to create a trust and claims involving Quistclose trusts
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Campbell v Tran [2024] NSWSC 204
Case
[2024] NSWSC 204
Decision Date
CaseChat Overview and Summary
In the case of Campbell v Tran, the plaintiffs, Campbell and his wife, alleged that Tran had engaged in misleading and deceptive conduct by making representations regarding an investment opportunity in a mortgage broking business. The plaintiffs claimed that Tran had promised them a 50% interest in the business, inducing them to sell their properties and transfer the proceeds to Tran. The dispute also included allegations of breaches of a mentoring agreement and sales and marketing promises. The matter was heard in the Federal Circuit Court of Australia.
The court needed to determine whether Tran's conduct constituted misleading or deceptive conduct under the Australian Consumer Law (ACL). It also had to consider the applicability of the ACL as both a Commonwealth law and a State "application" law, as well as the scope of "postal, telegraphic or telephonic services" under the Competition and Consumer Act 2010 (Cth). Additionally, the court had to assess the measure of damages under the ACL and address issues of procedural fairness in relation to unrepresented litigants. The court also provided obiter remarks on the pleading of claims in fraud and restitution and discussed the intention to create a trust, including Quistclose trusts.
The court found that Tran's conduct did constitute misleading or deceptive conduct under the ACL, as it involved the use of telephonic services, including the internet. The court held that Tran's representations regarding the investment opportunity were misleading and deceptive, as Tran had no intention of transferring the promised interest in the mortgage broking business. The court also determined the appropriate measure of damages under the ACL. The court concluded that the plaintiffs were entitled to damages for the losses they incurred due to Tran's conduct.
The court ordered Tran to pay the plaintiffs damages in the amount of $1,625,000, plus interest and costs. The court also made an order for the return of the properties sold by the plaintiffs to Tran, along with any proceeds derived from those properties.